Bangalore District Court
Sri. H.M.Shivakumar vs Smt. S.Radha on 9 November, 2022
IN THE COURT OF XLII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-43)
Present: Sri. Kengabalaiah,
B.Com., LL.B.
XLII Addl. City Civil & Sessions Judge.
Dated this 9 th Day of November, 2022
O.S.No. 7388/2019
Plaintiff/s : Sri. H.M.Shivakumar
S/o S.Maralu Siddappa
Aged about 49 years,
R/at No.797, 1st C Main, 6th Cross
2nd Phase Girinagar, Bangalore -85.
[By Sri. H.Suresh, Adv.]
-Vs-
Defendant/s : 1. Smt. S.Radha
W/o A.S. Nagaraj
Aged about 43 years
R/at No.29/3, Manjunatha Nilaya
2nd Main Road, 2nd Cross,
Goraguntepalya, Tumkur Road,
Bangalore - 22
2. Smt. Lalitha @ Lalithamma
W/o Late M.Krishnamurthy
Aged about 74 years
3. Sri. K.Bhaskar
S/o Late M.Krishnamurthy
Aged about 45 years
4. Sri. K.Murali
S/o Late M.Krishnamurthy
Aged about 40 years
OS.No.7388/2019
2
5. Smt. K.Geetha
D/o Late M.Krishnamurthy
Aged about 39 years
6. Smt. K.Krishnaveni
D/o Late M.Krishnamurthy
Aged about 36 years
D2 to D6 are R/at No.50,
1st Main Road, Near Poojamma's
Temple, Goraguntepalya,
Tumkur Road, Bangalore -22.
[By Sri. M.S., Adv. ]
Date of institution of the suit 15.10.2019
Nature of the suit Declaration and Injunction
Date of commencement of 10.3.2022
recording the evidence
Date on which the judgment 09.11.2022
was pronounced
Total duration Years Months Days
03 00 25
(Kengabalaiah),
XLII Addl. City Civil & Sessions Judge.
*********
JUDGMENT
The plaintiff has filed this suit against the defendants for declaration and consequential relief of injunction.
2. The case of the plaintiff is that, the plaintiff is the absolute owner of the schedule property. Originally the suit OS.No.7388/2019 3 property was allotted to one M.Krishnamurthy, by the Mysore Electrical Industries Employees House Building Co-operative Society Ltd., who formed a layout in Sy. No's 1/1, 1/3, 3/2, 4/1, 4/2, 4/3, 4/4, 4/5, 4/6, 5, 6/1, 6/2, 7/1, 7/2, 8/1, 8/2, 9/1, 9/2, 11/1, 11/2, 11/3, 11/4, 12(p), 15/1, 16/1, 16/2, 16/3, 17/1, 17/2, 18/1, 18/2, 18/3, 19/1, 19/2, 19/4, 23, 24, 25/1, 25/2, 25/3, 25/5, 25/6 of Bagalagunte Village, Yeshwantpura Hobli, Bangalore North Taluk, acquired by the Govt. and handed over the possession of said lands to the society, vide letter No. LAQ(13)SR87/88 dated 18.11.1992 and LAQ(13)SR4/87- 88 dated 19.11.1998 by the special land acquisition officer and the said society executed the absolute Sale Deed dated 19.9.1995 in favour of M.Krishnamurthy. M.Krishnamurthy had two wives namely Lalitha @ Lalithamma, the Defendant No.2 and one Gowri. The said M.Krishnamurthy had executed a Registered Will dated 16.10.1996 in favour of his 2nd Wife Gowri in respect of property measuring to an extent of 15x40 feet, totally measuring 600 Sq.Ft. towards the southern portion of Suit property No.657. M.Krishnamurthy died on 19.11.2002 and after his death the name of 1st Wife Lalitha @ Lalithamma incorporated in respect of Northern portion of suit OS.No.7388/2019 4 schedule property. Thereafter, the Defendants 2 & 4 along with 2nd Wife Gowri and her son Venkatesh had sold the suit schedule property in favour of one J.V.Krishnamurthy under a registered Sale Deed dated 19.06.2003 and all the revenue documents transferred in the name of J.V. Krishnamurthy. The said J.V.Krishnamurthy sold the schedule property in favour of H.M.Mangala Gowramma under a registered Sale Deed dated 31.7.2003 and the khata has been incorporated in the name of Mangala Gowramma.
3. It is further submitted that, when this was the actual position, the Defendants 2 to 6 knowing fully well about the above said facts, had illegally without any right title and interest over the suit schedule property, had sold the schedule property in favour of the 1st Defendant under a Sale Deed dated 02.12.2008. The said H.M.Mangala Gowramma to avoid the family future Complications had executed gift deed in favour of the plaintiff and all the revenue documents were incorporated in the name of Plaintiff and the plaintiff paid upto date taxes of the said property and is in peaceful possession and enjoyment of the said property till date. When the plaintiff visited the BBMP office to get his name entered in the OS.No.7388/2019 5 revenue documents and on obtaining the encumbrance certificates, he came to know that the defendants 2 to 6 had further created and executed the sale deed in favour of the 1 st Defendant. Knowing the entries in the EC, the said H.M.Mangala Gowramma had challenged the said sale deed dated 02.12.2008 and filed a suit for bare injunction before the CCH-19 in O.S.No.3147/2009 without seeking cancellation of the sale deed dated 02.12.2008 and the Court had passed a Judgment and Decree dated 23.01.2018 giving clear findings that the plaintiff had not filed suit seeking declaration of title and not claimed declaratory relief of ownership granting the relief of declaration in respect of sale deed which does not arise. Since the scope of this suit is limited to the possession of the parties and since plaintiff has not sought for declaration of title the same does not arise. Therefore this suit for declaration for title and cancellation of the sale deed dated 02.12.2008. The cause of action for the suit arose on the base of fabricated, concocted and illegal execution of sale deed dated 02.12.2008 and further when the same was challenged before the CCH-19 in O.S.No.3147/2009 and Judgment and OS.No.7388/2019 6 Decree dated 21.03.2018 and on subsequent dates. Hence the suit.
4. In pursuance of the summons, the defendants have appeared through their counsel and filed the written statement by denying the averments made in para-3 of the plaint. The defendants have denied the averments made in para-4 of the plaint that the suit schedule property was allotted to M.Krishnamurthy by the Mysore Electrical Industries Employees House Building Co-operative Society Ltd., and the said society executed the absolute Sale Deed dated 19.9.1995 in his favour. The defendants have denied the averments made in para-5 of the plaint that M.Krishnamurthy had two wives and he had executed a Registered Will dated 16.10.1996 in favour of his 2 nd Wife Gowri in respect of property measuring to an extent of 15x40 feet towards the southern portion of the schedule property. It is submitted that, the Will referred has been created based on which Gowri does not confer any right, title or interest over the property which is referred above. The defendants denied the averments made in para-6 of the plaint that after the death of M.Krishnamurthy, the Defendants 2 & 4 along with 2 nd Wife OS.No.7388/2019 7 Gowri and her son Venkatesh had sold the suit schedule property in favour of one J.V.Krishnamurthy under a Sale Deed and the said J.V.Krishnamurthy sold the schedule property in favour of H.M.Mangala Gowramma under a Sale Deed, are all false and frivolous. The Sale Deed referred above has been created for the purpose to knock of the schedule property. Actually the defendants 2 and 4 along with Gowri have not executed any Sale Deed at any point of time and as such the said Sale Deed is not binding on the defendants 2 to 6. The defendants denied the averments made in para-7 of the plaint that when this was the actual position, the Defendants 2 to 6 knowing fully well about the above said facts, had illegally without any right title and interest over the suit schedule property, had sold the schedule property in favour of the 1st Defendant under a Sale Deed dated 02.12.2008 and the said H.M.Mangala Gowramma to avoid the family future Complications had executed gift deed in favour of the plaintiff and all the revenue documents were incorporated in the name of Plaintiff and the plaintiff paid upto date taxes of the said property and is in peaceful possession and enjoyment of the said property, denied as false. The gift OS.No.7388/2019 8 deed is created by Mangala Gowramma behind the back of the defendants with an intention to defeat and defraud the right of the defendants over the schedule property. The defendants denied the allegations made in para-8 of the plaint that when the plaintiff visited the BBMP office to get his name entered in the revenue documents and on obtaining the encumbrance certificates, he came to know that the defendants 2 to 6 had further created and executed the sale deed in favour of the 1 st Defendant, are all false and frivolous. The defendants 2 to 4 have made clear that they have not executed any document in the nature of Sale Deed and they are in possession and enjoyment of the suit schedule property as successor of M.Krishnamurthy. The said Lalitha @ Lalithamma as successor of her husband, has sold the schedule property along with her children in favour of defendant No.1 by way of Sale Deed dated 2.12.2008 and hnade over the possession of the schedule property in favour of the 1st defendant and the 1st defendant is in possession of the schedule property. The defendants have denied the allegations made in para-9 of the plaint that H.M.Mangala Gowramma had challenged the said sale deed dated OS.No.7388/2019 9 02.12.2008 and filed a suit for bare injunction before the CCH- 19 in O.S.No.3147/2009 without seeking cancellation of the said sale deed and the Court given a clear findings that the plaintiff has not filed a suit seeking declaration of title and not claimed declaratory relief of ownership granting the relief of declaration in respect of sale deed which does not arise and since the scope of this suit is limited to the possession of the parties and since plaintiff has not sought for declaration of title the same does not arise.
5. It is submitted that Mangala Gowramma has created the document in favour of the plaintiff with an intention to multiply the proceedings and she is well aware that she is not in possession of the schedule property. Further, M.Krishnamurthy was the absolute owner of the schedule property. One Gowri and Venkatesh are strangers to the family of defendants 2 to 6 and they have no right over the schedule property and the act of the said persons in creating the documents is illegal. The said Mangala Gowramma had filed a criminal case against the defendants for the offences punishable under Section 465, 471, 420 r/w 34 of IPC in CC.No.5493/2012 on the file of XLV ACMM, Bangalore and OS.No.7388/2019 10 the same ended in acquittal. In view of the Sale Deed dated 2.12.2008, the 1st defendant is in the owner in possession of the schedule property and the khata has been effected in her name and she has been paying the taxes. The plaintiff has no locus standi to file the suit. In the earlier suit, the declaration sought by the donor of the plaintiff had been dismissed and as such the second suit seeking the same relief is not maintainable. After the judgment and decree passed in the earlier suit, Mangala Gowramma had tried to dispossess the 1st defendant from the suit schedule property. The plaintiff has suppressed the actual facts before the court and not approached this court with clean hands. The documents on which the plaintiff is relying upon, have been created for the purpose to make illegal gain. The court fee paid by the plaintiff is insufficient and the plaintiff has to value the suit under Section 24(a) of KCF and SV Act. Hence, sought for dismissal of the suit.
6. On the basis of the above pleadings, the following issues have been framed :-
1) Whether the plaintiff proves that he is the absolute owner and possession and enjoyment of the suit property ?
OS.No.7388/2019 11
2) Whether the plaintiff proves that the Sale Deed executed by D.2 to D.6 in favour of D.1 is concocted and fabricated document ?
3) Whether the plaintiff proves the interference of the defendant ?
4) What order or decree?
7. In order to prove the case of the plaintiff, the wife of the plaintiff examined herself as P.W.1 and got marked the documents at Ex.P1 to P25. On the other hand, the 1 st defendant herself examined as DW.1 and got marked the documents at Ex.D1 to D29.
8. Heard the arguments.
9. My findings on the above issues are as under:-
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: As per final order, for the following:
REASONS
10. Issue No.1 and 2 :- Since these issues are inter- related to each other, hence they are taken together for common discussion to avoid repetition of facts.
11. At the outset, it is relevant to mention the admitted facts. It is an admitted fact that the schedule property was allotted to M.Krishnamurthy by the Mysore Electrical OS.No.7388/2019 12 Industries Employees House Building Co-operative Society Ltd., who formed a layout in Sy. No's 1/1, 1/3, 3/2, 4/1, 4/2, 4/3, 4/4, 4/5, 4/6, 5, 6/1, 6/2, 7/1, 7/2, 8/1, 8/2, 9/1, 9/2, 11/1, 11/2, 11/3, 11/4, 12(p), 15/1, 16/1, 16/2, 16/3, 17/1, 17/2, 18/1, 18/2, 18/3, 19/1, 19/2, 19/4, 23, 24, 25/1, 25/2, 25/3, 25/5, 25/6 of Bagalagunte Village, Yeshwantpura Hobli, Bangalore North Taluk and the said society executed the absolute Sale Deed dated 19.9.1995 in his favour. The disputed fact between the parties is that according to the plaintiff, M.Krishnamurthy has 2 wives by name Lalitha @ Lalithamma and Gowri. The said M.Krishnamurthy had executed a Registered Will dated 16.10.1996 in favour of his 2 nd Wife Gowri in respect of property measuring to an extent of 15x40 feet, towards the southern portion of the schedule property. After the death of M.Krishnamurthy, the 1st wife Lalitha @ Lalithamma, 2nd wife Gowri and her son Venkatesh sold the schedule property in favour of J.V.Kishnamurthy under a registered Sale Deed dated 19.6.2003 and the said J.V.Krishnamurthy had executed a Sale Deed in favour of Mangala Gowramma. However the defendants disputed the Will executed by M.Krishnamurthy in favour of his 2 nd wife OS.No.7388/2019 13 Gowri to an extent of 15 x 40 feet towards southern portion of the schedule property. They also disputed that the defendants 2 and 4 and Gowri and her son Venkatesh executed the Sale Deed in favour of J.V.Krishnamurthy. When the defendants have denied the execution of the Will in favour of Gowri with respect to southern half portion of the schedule property as well as the Sale Deed executed by the defendants 2 and 4 and Gowri and her son Venkatesh in favour of J.V.Krishnamurthy, it is burden on the plaintiff to prove the said facts.
12. In order to prove the case of the plaintiff, the SPA holder of the plaintiff namely Kavitha Shivakumar herself has filed affidavit in lieu of her examination-in-chief as PW.1 by reiterating the contents of the pleadings and she has relied upon the power of attorney executed by her husband in her favour marked at Ex.P1, two discharge summary issued by Ramaiah Hospital pertaining to treatment taken by her husband for paralysis marked at Ex.P2 and P3, certified copy of the Sale Deed executed by Mysore Electrical Industries Employees House Building Co-operative Society Ltd., in favour of M.Krishnamurthy with respect to the schedule OS.No.7388/2019 14 property on 25.8.1995 marked at Ex.P4, demand register extract issued by City Corporation Dasarahalli in the name of M.Krishnamurthy marked at Ex.P5, Will dated 16.10.1996 executed by M.Krishnamurthy in favour of his 2 nd wife Gowri marked at Ex.P6, demand register extract issued by City Corporation Dasarahalli in the name of Gowr marked at Ex.P7, certified copy of the Sale Deed dated 2.6.2003 executed by defendants 2 and 4 and Gowri and Venkatesh in favour of J.V.Krishnamurthy with respect to schedule property marked at Ex.P8, demand register extract issued by City Corporation Dasarahalli in the name of J.V.Krishnamurthy marked at Ex.P9, demand register extract issued by City Corporation Dasarahalli in the name of Lalitha marked at Ex.P10, certified copy of the Sale Deed dated 31.7.2003 executed by J.V.Krishnamurthy in favour of H.M.Mangala Gowramma with respect to schedule property marked at Ex.P11, Uttara Pathra and Khata certificate issued by BBMP in the name of Mangala Gowramma marked at Ex.P12 and P13, demand register extract issued by BBMP in the name of Mangala Gowramma marked at Ex.P14, certified copy of the Sale Deed executed by defendants 2 to 6 in favour of the 1 st OS.No.7388/2019 15 defendant marked at Ex.P15, gift deed executed by Mangala Gowramma in favour of the plaintiff marked with respect to schedule property marked at Ex.P16, khata certificate and Uttara Pathra issued by BBMP in the name of the plaintiff marked at Ex.P17 and P18, Uttara Pathra and khata certificate issued by BBMP in favour of the plaintiff for the year 2018 marked at Ex.P19 and P20, demand register extract issued by BBMP in the name of plaintiff for the year 2018-19 and 2019-20 marked at Ex.P20 and P21, encumbrance certificates marked at Ex.P22 and P23, certified copy of the judgment and decree in OS.No.3147/2009 filed by Mangala Gowramma against the 1st defendant and others marked at Ex.P24 and P25.
13. Whereas in the cross-examination, she admits that the schedule property allotted to M.Krishnamurthy by Mysore Electrical Industries Employees House Building Co-operative Society Ltd. She admits that the defendants 2 and 4 and Gowri and her son Venkatesh have executed the Sale Deed in favour of J.V.Krishnamurthy. She admits that the defendants 3, 5 and 6 are the children of 2 nd defendant Lalitha and M.Krishnamurthy and they are not parties to the Sale OS.No.7388/2019 16 Deed executed in favour of J.V.Krishnamurhty. Further she deposed that they are not made as parties to the Sale Deed because M.Krishnamurthy executed a Will in favour of Gowri and Lalitha @ Lalithamma, for which they have not made the children of M.Krishnamurthy as parties to the Sale Deed. She admits that J.V.Krishnamurthy executed the Sale Deed in favour of Mangala Gowramma. She denies that Mangala Gowramma is not in possession and enjoyment of the schedule property. Further she deposed that they have not stated in the plaint with respect to execution of the gift deed. She denies that themselves have created the khata certificate, Uttara Pathra and demand register extract, they are not issued by BBMP. She denies that the 1 st defendant is in possession and enjoyment of the schedule property as absolute owner and all the documents standing in her name.
14. On the other hand, the 1st defendant Radha filed her affidavit in lieu of her examination-in-chief as DW.1 by reiterating the contents of the written statement. She has deposed that Lalitha @ Lalithamma is the legally wedded wife of M.Krishnamurthy and herself and her children have sold the schedule property in her favour for valuable consideration OS.No.7388/2019 17 for their legal necessities. After the purchase of the schedule property she is in possession and enjoyment of the same and she has constructed the compound wall to the entire schedule property and continued her possession over the said property. In support of her evidence, she has relied upon the documents i.e., certified copy of the Sale Deed dated 25.8.1995 executed Mysore Electrical Industries Employees House Building Co-operative Society Ltd., in favour of M.Krishnamurthy with respect to the schedule property marked at Ex.D1, nomination letter issued by Mysore Electrical Industries Employees House Building Co-operative Society Ltd., in favour of M.Krishnamurthy marked at Ex.D2, Khata endorsement issued by the BBMP in favour of Lalitha on 16.7.2008 marked at Ex.D3, genealogical tree pertaining to the family of M.Krishnamurthy marked at Ex.D4, registered Sale Deed executed by Lalitha and her children in her favour on 2.12.2008 marked at Ex.D5, Uttara Pathra issued by BBMP in her favour marked at Ex.D6, demand register extract issued by BBMP marked at Ex.D7, Khata certificate issued by the BBMP marked at Ex.D8, encumbrance certificates marked at Ex.D9 to D15, copy of the possession certificate issued by OS.No.7388/2019 18 Mysore Electrical Industries Employees House Building Co- operative Society Ltd., in favour of M.Krishnamurthy marked at Ex.D16, certified copy of the Sale Deed dated 25.8.1995 executed by Mysore Electrical Industries Employees House Building Co-operative Society Ltd., in favour of S.Ramashekar marked at Ex.D17 and tax paid receipts for the year 2009 to 2022 marked at Ex.D18 to D29.
15. Whereas in her cross-examination, the learned counsel for the plaintiff elicited that the suit schedule property originally belonged to M.Krishnamurthy who purchased the same from Mysore Electrical Industries Employees House Building Co-operative Society Ltd. She pleads ignorance that M.Krishnamurthy had 2 wives namely 1 st wife Lalitha @ Lalithamma and 2nd wife Gowri, M.Krishnamurthy bequeathed southern half portion of the schedule property in favour of his 2nd wife Gowri by executing the Will dated 16.10.1996. She admits that the khata maintained by City Corporation Dasarahalli in the name of M.Krishnamurthy at the time of her purchase. She pleads ignorance that the Khata has been transferred in the name of Gowri. She pleads ignorance that Lalitha, Murali, Gowri and Venkatesh have jointly sold the OS.No.7388/2019 19 entire schedule property in favour of J.V.Krishnamurthy under a registered Sale Deed dated 2.6.2003. She pleads ignorance that J.V.Krishnamurthy got transferred the khata in his name from the City Corporation Dasarahalli. She pleads ignorance that the khata mutated in the name of Gowri with respect to the property measuring 15 x 40 feet and remaining 15 x 40 feet mutated in the name of Lalitha. She pleads ignorance that J.V.Krishnamurthy executed the Sale Deed in favour of Mangala Gowramma on 31.7.2003. She pleads ignorance that Mangala Gowramma got executed the gift deed under Ex.P16 in favour of the plaintiff and the BBMP has accepted the khata in the name of the plaintiff as per Ex.P17 and P20. She pleads ignorance that H.M. Mangala Gowramma has filed a suit against her as well as Lalitha after came to know about the alleged Sale Deed executed by Lalitha in her favour. Though this witness pleads ignorance about the case filed by Mangala Gowramma against herself and others, on perusal of Ex.P24 certified copy of the judgment in OS.No.3147/2009, this witness is the 2nd defendant and she also contested the matter. In spite of that she expressed her OS.No.7388/2019 20 ignorance about the suit filed by Mangala Gowramma, as such her evidence is not trust worthy to be believed.
16. On careful scrutiny of the evidence of both the parties as well as the documents relied by them, it is an undisputed fact that M.Krishnamurthy has purchased the schedule property from Mysore Electrical Industries Employees House Building Co-operative Society Ltd. It is also an undisputed fact that the 2nd defendant is the wife of M.Krishnamurthy and defendants 3 to 6 are the children of M.Krishnamurthy. According to the plaintiff, Gowri is also 2 nd wife of M.Krishnamurthy and they begotten a son by name Venkatesh. M.Krishnamurthy has executed a registered Will on 16.10.1996 with respect to southern half portion of the schedule property measuring 15 x 40 feet in favour of Gowri. Though the defendants have denied the relationship of Gowri with M.Krishnamurthy, whereas in Ex.P6 registered Will executed by M.Krishnamurthy, it is evident that Gowri is the 2nd wife of M.Krishnamurthy, for which he bequeathed half site along with half share in retirement benefits and pentionary benefits to Gowri. Khata in respect of half portion of the schedule property has been transferred in the name of Gowri OS.No.7388/2019 21 based on the Will Ex.P6 which evident from Ex.P7 and the remaining half Site measuring 40 x 15 feet towards northern portion transferred in the name of Lalitha @ Lalithamma which evident from Ex.P10. Thereafter the defendants 2 and 4 and Gowri and her son Venkatesh sold the entire extent of the schedule property in favour of J.V.Krishnamurthy under a registered Sale Deed dated 2.6.2003 which evident from Ex.P8. The khata of the schedule property transferred in the name of J.V.Krishnamurthy based on Ex.P8 which evident from Ex.P9. J.V.Krishnamurthy being the absolute owner in possession and enjoyment of the schedule property, has sold the same in favour of H.M.Mangala Gowramma under a registered Sale Deed dated 31.7.2003 which evident from Ex.P11 and the BBMP has transferred the khata in the name of Mangala Gowramma based on the said Sale Deed which evident from Ex.P13 and 14 and the BBMP has also issued Uttara Pathra in favour of Mangala Gowramma which evident from Ex.P12. Mangala Gowramma being the owner in possession and enjoyment of the schedule property got executed a gift deed in favour of the plaintiff on 29.6.2018 which is marked at Ex.P16 and based on the said gift deed, OS.No.7388/2019 22 khata has been transferred in the name of the plaintiff which evident from Ex.P17 to P21. If the evidence of PW.1 and the documents relied by her are taken into consideration, abundantly makes it clear that Mangala Gowramma being the owner in possession and enjoyment of the schedule property, has executed a Gift deed in favour of the plaintiff.
17. Under Section 122 of Transfer of Property Act, Gift is defined as "Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void". In the instant case, Mangala Gowramma who is the donor executed the gift deed and the plaintiff being the donee accepted the gift and based on the gift deed, all the documents transferred in the name of the plaintiff. When the plaintiff has established that he is the absolute owner in possession and enjoyment of the schedule property based on the gift deed, there is no force in the contention of the OS.No.7388/2019 23 defendants that the title not been passed in favour of the plaintiff.
18. It is relevant to state here that the donor Mangala Gowramma has filed a suit against J.V.Krishnamurthy, the 1 st defendant and others for injunction in OS.No.3147/2009 alleging the interference. The learned CCH-19 has decreed the said suit which evident from Ex.P24. Whereas, in the said suit Mangala Gowramma has examined one attesting witness P.Ravindra Prabhu as PW.2 to prove her possession over the schedule property. However, the suit for bare injunction for simplicitor and declaration not been sought by Mangala Gowramma, for which injunction has been granted in favour of Mangala Gowramma restraining the defendants from interfering with the possession of the schedule property.
19. The learned counsel for the defendants argued that, it is a suit for injunction, the donor of the plaintiff has filed a simplicitor suit for injunction. Unless the donor of the plaintiff declared as owner, the plaintiff do not derive any title with respect to the schedule property. Admittedly, there is no dispute with respect to schedule property acquired by Mangala Gowramma under a registered Sale Deed. Though OS.No.7388/2019 24 the defendants have contended that Gowri has no any right to execute the Sale Deed in favour of J.V.Krishnamurthy and J.V.Krishnamurthy has no any right to execute the Sale Deed in favour of Mangala Gowramma and in turn Mangala Gowramma has no any right to execute the gift deed in favour of the plaintiff and as such, the plaintiff not derived any title to the schedule property. The plaintiff has proved that the husband of Gowri namely M.Krishnamurthy bequeathed southern half portion of the schedule property in favour of Gowri who is the 2nd wife and based on the said Will, Khata has been accepted in the name of Gowri with respect to the property measuring 15 x 40 feet and the remaining 15 x 40 feet towards northern portion transferred the khata in the name of first wife Lalitha @ Lalithamma. Both Gowri and her son Venkatesh, Lalitha and her son Murali got executed the Sale Deed in favour of J.V.Krishnamurthy way back in the year 2003 with respect to the entire schedule property. Based on the said Sale Deed, the khata has been transferred in the name of J.V.Krishnamurthy and possession has been handed over to him. The said J.V.Krishnamurthy being the owner of the schedule property, has sold the same in favour of Mangala OS.No.7388/2019 25 Gowramma. The said Mangala Gowramma being the owner of the schedule property executed the Gift deed in favour of the plaintiff and the plaintiff has accepted the gift and all the revenue documents transferred in his name. As such, there is no force in the arguments canvassed by the learned counsel for the defendants that the plaintiff has not derived any title with respect to the schedule property.
20. The defendants have contended that the defendants 2 to 6 have executed the Sale Deed in favour of the 1st defendant with respect to the schedule property and hence, the 1st defendant is in the owner in possession of the schedule property. Though DW.1 has spoken with regard to purchase of the schedule property from defendants 2 to 6 and produced the document at Ex.D5, when defendants 2 and 4 and Gowri and her son Venkatesh got executed the Sale Deed in the year 2003 with respect to the schedule property, the said Lalitha @ Lalithamma i.e., defendant No.2 not having any alienable right, title and interest to execute the Sale Deed in favour of the 1st defendant since there is no right or possession with respect to the schedule property retained by Lalitha @ Lalithamma to execute the Sale Deed. Though OS.No.7388/2019 26 DW.1 has produced the Sale Deed, she has not at all got any right over the schedule property based on the Sale Deed since the vendors have no valid title and possession to execute the Sale Deed in her favour.
21. The plaintiff has specifically contended that the defendants 2 to 6 have concocted the Sale Deed to knock off the schedule property of the plaintiff, for which a criminal complaint has been registered against the defendants. However, the said case has been ended in acquittal. When the defendants 2 to 6 have no any right over the schedule property to execute the Sale Deed in favour of the 1 st defendant, the alleged Sale Deed dated 2.12.2008 executed by defendants 2 to 6 in favour of the 1 st defendant is nothing but a fabricated one when they have no valid title to execute the same and the same is void and not binding on the plaintiff. In the light of the above discussion, I hold issue No.1 and 2 in the affirmative.
22. Issue No.4:- The plaintiff has proved that he is the owner in possession and enjoyment of the suit schedule property. The defendants have also claimed that the 1 st defendant is the absolute owner of the schedule property on OS.No.7388/2019 27 the basis of the Sale Deed executed by the defendants 2 to 6, which amounts to interference of the plaintiff's peaceful possession and enjoyment of the suit schedule property. Hence, I hold issued No.3 in the affirmative.
23. Issue No.4:- In view of the above discussions, I proceed to pass the following order:-
ORDER Suit of the plaintiff is hereby decreed with costs.
It is declared that the plaintiff is the absolute owner of the suit schedule property.
The Sale Deed dated 2.12.2008 executed by the defendants 2 to 6 in favour of the 1 st defendant, is declared as null and void and not binding on the plaintiff.
The defendants are hereby restrained by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
Draw a decree accordingly.
(Dictated to the Judgment Writer, typed by him, the transcript thereof corrected and then pronounced by me, in open court, on this the 9th day of November, 2022).
(Kengabalaiah), XLII Addl. City Civil & Sessions Judge, Bengaluru.
OS.No.7388/2019 28 ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Kavitha Shiva Kumar List of documents exhibited for plaintiff:
Ex.P1 S.P.A.
Ex.P2 & 3 Two Discharge summary
Ex.P4 Certified copy of Sale Deed dtd 25.8.1995
Ex.P5 Demand register extract
Ex.P6 Will dated 16.10.1996
Ex.P7 Demand register extract
Ex.P8 Certified copy of Sale Deed dtd 2.6.2003
Ex.P9 & 10 Demand register extracts
Ex.P11 Certified copy of Sale Deed dtd 31.7.2003
Ex.P12 Uttara Pathra
Ex.P13 Khata certificate
Ex.P14 Demand register extract
Ex.P15 Certified copy of Sale Deed dtd 2.12.2008
Ex.P16 Gift deed dated 29.6.2018
Ex.P17 Khata certificate
Ex.P18 Uttara Pathra
Ex.P19 Khata certificate
Ex.P20 & 21 Demand register extracts
Ex.P22 & 23 Encumbrance certificates
Ex.P24 Certified copy of judgment in OS.3147/09
Ex.P25 Certified copy of decree in OS.3147/2009
OS.No.7388/2019
29
List of witnesses examined for defendants:
DW.1 S.Radha List of documents exhibited for defendants:
Ex.D1 Certified copy of Sale Deed dtd 25.8.1995 Ex.D2 Nomination letter Ex.D3 Uttara Pathra Ex.D4 Genealotical tree Ex.D5 Original Sale Deed dated 2.12.2008 Ex.D6 Uttara Pathra Ex.D7 Demand register extract Ex.D8 Khata certificate Ex.D9 to 15 Encumbrance certificates Ex.D16 Copy of possession certificate Ex.D17 Certified copy of Sale Deed dtd 25.8.1995 Ex.D18 to 29 Tax paid receipts XLII Addl. City Civil & Sessions Judge, Bengaluru.