Bangalore District Court
Chandrika. G vs Mr.John Eappen on 5 March, 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 5th day of March, 2020.
PRESENT: SRI. SATHISHA L.P., B.A., LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.4066/2013
PLAINTIFF : 1. Chandrika. G
W/o Giridhar. P
Aged about 45 years
2. Devika R. Bhat
Aged about 38 years
W/o Shrisha. K
3. Shakunthal.R Bhat
Aged about 74 years,
W/o late L.R.Bhat
All are residing at:
No.6, Bhat Complex,
S.M.Road,
T.Dasarahalli P.O
Bangalore-560057,
Represented by GPA Holder
Shrisha.R Bhat
(By Sukumar Jain.N Advocate)
VS.
DEFENDANTS : 1. Mr.John Eappen
S/o Yohsnnan
Aged about 60 years
2 O.S.No.4066/2013
2. Jiby John
S/o John Eappan
Aged about 36 years
Both are residing at No.07,
Jibin Villa, Shabarinagar,
Jalahalli West,
Bangalore-560015
3. S.Ramesh
S/o P.Late Shamanna,
Aged about 48 years,
No.26, 4th A cross,
Defense colony,
Nagasandra P.O.
Bangalore-560015
4. T.V.Siddaramu,
S/o S.Veerabrahachar,
Aged about 44 years,
Nanjundeshwara Nilaya,
5/16, 29th cross road,
Kilari road, Bangalore-3.
(For D2 & D4 NRS Advocate, D.1 &
D3 placed exparte)
Date of Institution of the suit : 7-6-2013
Nature of the suit : Declaration, Injunction and
possession
Date of commencement of : 19-8-2019
recording of the evidence
Date on which the Judgment was : 5-3-2020
pronounced
Total Duration Years Months Days
6 8 28
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.4066/2013
JUDGMENT
This suit is filed by the plaintiffs against the defendants for the relief of declaration to declare the sale deed dated 21-3-2007 executed by the first defendant as a General Power of Attorney holder of the third plaintiff in favour of the second defendant duly registered as document No.68160/06-07 CD No.BLND 396 before the Sub-Registrar Bangalore North, and consequently the sale deed dated 21-6-2011 executed by the second defendant in favour of the third defendant registered as document No.PNY.1.02070.2011-12 C.D No.PNYD 473 before the Sub- Registrar, Peenya, Bangalore and sale deed dated 8-9-2011 executed by the third defendant in favour of the fourth defendant. Duly registered as document No.PNY-1-05007/2011-2012 before the Sub-Registrar, Peenya, Bangalore as void ab-initio and not binding on the plaintiffs and for possession of the suit property along with the cost and such other reliefs.
2. The brief facts of the plaintiff case is that, the larger extent of schedule property was belonging to their mother i.e., third plaintiff, who has acquired the same by sale deed registered 4 O.S.No.4066/2013 as document No.4/88-89 volume 4070 of Book-I before the Sub- Registrar Bangalore North dated 30-3-1988 executed in her favour by Padmavathi Ammal. Later the third plaintiff executed a registered gift deed in favour of the first and second plaintiffs on 13-3-2000 duly registered as document No.13357/99-2000 before the Sub-Registrar Bangalore North in respect of the larger extent of schedule property i.e., 55 x 50 ft. By virtue of this gift deed the first and second plaintiffs became the absolute owners and in possession and enjoyment of the larger extent of the schedule property.
3. The third plaintiff want of funds decided to sell her property. Due to oversight third plaintiff sold the half portion of the schedule property to one Smt.Podiamma Maria by a sale deed dated 17-8-2002 duly registered document No.9652/02-03 before the Sub-Registrar Bangalore North. The first defendant has introduced the Smt. Podiamma Maria to the third plaintiff. While executing the aforesaid sale deed, the third plaintiff also executed a registered General Power of Attorney in favour of first defendant in respect of the remaining half portion of the property 5 O.S.No.4066/2013 which was sold to Podiamma Maria, which is more fully described in the suit schedule property, Subsequently the third plaintiff realized her mistake in executing the aforesaid General Power of Attorney in respect of the schedule property in favour of first defendant and cancelled the aforesaid General Power of Attorney on 14-2-2007 which is duly registered as document No.670/206- 07 before the Sub-Registrar Bangalore North. The revocation of General Power of Attorney is also informed to first defendant and the same was published in the Sanje Vaani daily news paper dated 23-2-2007.
4. After the revocation of General Power of Attorney in respect of schedule property, the first defendant as a General Power of Attorney holder of third plaintiff executed the sale deed in respect of schedule property in favour of his son, the second defendant which is duly registered as document No.68160/2006- 07 before the sub-registrar Bangalore North Taluk. This act of the first defendant is deliberate and intentional, which is totally illegal and not binding to the plaintiffs No.1 and 2 for the reason that the third plaintiff has no right, title upon the schedule property in 6 O.S.No.4066/2013 so far as the sale of the remaining portion of the schedule property by the third plaintiff to Podiamma Maria, the first and second plaintiffs settled the issue with the third plaintiff amicably later.
5. The first defendant after knowing about the cancellation of the GPA referred to above, with the oblique motive executed a registered sale deed in respect of the schedule property in favour of his son, the second defendant on 21-3-2007. The said sale deed is a collusive one and not the bonafide one. The said sale deed is executed only with an intention to defraud the plaintiffs. The said sale deed has no weight in the eye of law. The first defendant executed this sale deed as a General Power of Attorney holder of plaintiff's mother knowing fully well that the GPA executed in his favour by the third plaintiff's is not in force.
6. Subsequently the second defendant conveyed the title of schedule property in favour of third defendant for consideration by a registered sale deed dated 21-6-2011 duly registered as document No.2070/11-12 before the Sub-Registrar Peenya. Again the third defendant conveyed the title of the 7 O.S.No.4066/2013 schedule property by executing a registered sale deed in favour of fourth defendant on 8-9-2011 Which is duly registered as document No.5007/11-12 before the sub-registrar Peenya.
7. The first defendant has sold the property without any authority, consent/knowledge of the plaintiffs in favour of his son the second defendant with an intention of knocking out schedule property. The plaintiffs are married and living separately with their family. Hence they are not aware about the illegal transaction done by first defendant in favour of the second defendant and similarly the subsequent transfer of title in favour of third and fourth defendant in respect of the schedule property.
8. At present the schedule property is in illegal possession of fourth defendant. The transaction entered between defendants in respect of the schedule property is not binding upon the first and second plaintiffs. The first defendant and other defendants colluded and played fraud upon plaintiffs in respect of the schedule property. None of the transaction referred above are bonafide, and the same are with malafide intention. 8 O.S.No.4066/2013
9. It is further submitted that, first defendant had no authority to sell the schedule property in favour of second defendant is son, and similarly the second and third defendant also have no authority to alienate the schedule property. The first and second defendant being the father and son, the transfer of the title of schedule property in favour of the second defendant is in collusion with an intention to defraud the plaintiffs. The said sale deed without any consideration, created only to knock out the schedule property. The said transaction is a benami one.
10. The plaintiffs came to know about the various transaction and transfer of titles in respect of the schedule property only after filing the suit O.S.No.2597/2011 against the defendant No.2 in the City Civil Judge at Bangalore. The plaintiffs came to know from reliable sources from local people about the transfer of title in favour of second defendant in respect of schedule property after filing of the aforesaid suit. The same was confirmed after the written statement filed by the second defendant in the above suit, on 18-1-2012. There after the plaintiff has filed the application in the aforesaid suit for 9 O.S.No.4066/2013 withdrawal of the suit for filing the comprehensive suit. The said application was allowed on 5-1-2013. With these ground the plaintiff seeks to decree the suit.
11. The defendants No.4 who has appeared before the court in pursuance of the summons have filed detailed written statement disputing and denying the plaint averment, wherein he has contended that, suit of the plaintiffs is not at all maintainable either on law or facts of the case. Hence suit of the plaintiffs is liable to be dismissed in limine at threshold itself. The suit of the plaintiffs is bad for mis-joinder and non-joinder of necessary parties and this count alone the suit is liable to be dismisses in limine.
12. It is further contended that, at the first instance the plaintiff has filed a suit in O.S.No.2597/2011 for the relief of permanent injunction, restraining the second defendant herein, his men, agents or any other person on his behalf from interfering with the peaceful possession and enjoyment of the suit schedule properties. In the said suit second defendant seriously contested by filing written statement in the above suit and thereafter the 10 O.S.No.4066/2013 said suit came to be withdrawn by the plaintiff and thereafter filed the present suit seeking for the relief of declaration and such other reliefs and therefore the same is not maintainable in law, facts, probabilities and circumstances of the case on hand and hence the same is liable to be dismissed in limine. And he further contends that, after following necessary formalities the first defendant transacted the same in favour of second defendant, and thereafter the second defendant transacted the same in favour of third defendant and the said documents are binding on the parties to the suit as those documents are registered documents before the concerned authorities and the said documents has a legal sanctity in the eye of law. it is further contended that, on obtaining the legal opinion from the advocate this defendant had purchased the property from the third defendant for valuable sale consideration and the said fact is within the knowledge of all the persons in the locality inspite of knowing the same the plaintiffs have come up with the present suit by making false and reckless allegations. And he further contended that, to the knowledge of this defendant the third 11 O.S.No.4066/2013 defendant was the owner of the property in pursuance of the registered document and after perusing the title deeds of the third defendant proceeded to purchase the property accordingly on payment of the sale consideration this defendant purchased the same and ever since the date of purchase, this defendant is in lawful possession and enjoyment of the same as true and lawful owner thereof without any let or hindrance from any corner and the said fact is within the knowledge of the plaintiff and other persons of their family. And he further contends that, there is no cause of action for the suit and the same is filed on the imaginary and illusory one. The 4th defendant further contends that, the second defendant has acquired the suit schedule property through a registered sale deed dated 21-3-2007 and the said sale deed is registered as document No.68160/2006-07 and stored in CD No.BLND.396 in office of the sub-registrar, Bangalore North Taluk, Bangalore and ever since the date of purchase, the second defendant is in possession and enjoyment of the same as true and lawful owner thereof without any let or hindrance from any corner and on the basis of the said sale deed all the revenue 12 O.S.No.4066/2013 documents were transferred in the name of the second defendant. it is further submitted that, in order to discharge the legal and family necessities of the second defendant, has sold the same in favour of one Mr.S.Ramesh, son of late P.Shamanna on 21-6-2011 and the said document is registered as No.PNY.1.02070/2011-12 and stored in CD No.PNYD.473 in the office of the sub-registrar, Peenya, Bangalore and ever since the date of purchase, the said S.Ramesh, i.e., third defendant is in possession and enjoyment of the same as true and lawful owner thereof without any let or hindrance from any corner. In pursuance of the sale deed the third defendant approached the revenue authorities and obtained the entries in his name from the BBMP Bangalore. Thereafter third defendant alienated the property in favour of 4th defendant on 8-9-2011 by receiving valuable sale consideration and executed the registered in Sub- Registrar Office Peenya. On the date of execution sale deed the third defendant was in possession and enjoyment of the property. After of the purchase of the property the 4th defendant approached the revenue authority to obtained the entries in his 13 O.S.No.4066/2013 favour and also applied for construction of building before the concerned authorities and after obtaining the permission put up the construction of ground, first and second floor of residential building thereon and accordingly he is in possession and enjoyment of the same.
13. Further contended that, plaintiff is not in possession and enjoyment of the property and on the other hand this defendant is the sole and absolute owner of the western half portion of the property bearing site No.4, katha No.289, B.M.P H.M.T. Ward No.1, formed in Sy.No.14 of Peenya village vide conversion order dated 11-6-1974 measuring East to West 27 ½ feet and North to South 50 feet and assigned PID No.1-49-1-4 situated in 3rd cross, S.M.Road Potty garden, Jalahalli west, Bangalore, together with construction building thereon. With these grounds defendant No.4 seeks to dismiss the suit.
14. On the basis of the above pleadings, the following issues were framed by my predecessor on 2-3-2017:-
1. Whether the plaintiffs prove that the sale deed dated 21.3.2007 executed by the 1st defendant 14 O.S.No.4066/2013 as General Power of Attorney of the 3rd plaintiff in favour of the 2nd defendant is not binding on the plaintiffs?
2. Whether the plaintiffs prove that the sale deed dated 21.6.2011 executed by the 2nd defendant in favour of the 3rd defendant is not binding on the plaintiffs?
3. Whether the plaintiffs prove that the sale deed dated 8-9-2011 executed by the 3rd defendant in favour of the 4th defendant is not binding on the plaintiffs?
4. Whether the plaintiffs prove that they are entitled for possession of the suit schedule property from the 4th defendant?
5. What order or decree?
15. To substantiate the contentions urged in the plaint the GPA holder of plaintiffs Mr.Srisha R. Bhat has examined as P.W.1 and Ex.P.1 to 13 are marked. Ex.P.1 is the original GPA dated 5-6-2013, Ex.P.2 certified copy of the sale deed dated 30-3- 1988, Ex.P.3 is the certified copy of gift deed dated 13-3-2000, Ex.P.4 certified copy of GPA dated 17-8-2002, Ex.P.5 is revocation of GPA, Ex.P.6 is the certified copy of the sale deed dated 21-3-2007, Ex.P.7 certified copy of sale deed dated 21-6- 2011, Ex.P.8 is certified copy of sale deed dated 8-9-2011, Ex.P.9 15 O.S.No.4066/2013 is certified copy of plaint, Ex.P.10 is certified copy of WS in O.S.No.2597/2011, Ex.P.11 certified copy of order passed in O.S.No.2597/2011 on I.A.No.4 , Ex.P.12 is the demand register extract, Ex.P.13 Sanje Vani news paper dated 23-2-2007, Ex.P.13(a) public notice published in Sanje Vani news paper.
16. Despite sufficient opportunities the defendants have not cross examined the P.W.1 hence cross examination of P.W.1 by defendant taken as nil and defendants have not adduced any evidence hence their evidence taken as nil.
17. Heard the arguments and perused the records.
18. My finding on the above issues are:-
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
19. Issue No.1:- The plaintiffs are before the court for the relief of declaration to declare the sale deed dated 21-3-2007 16 O.S.No.4066/2013 executed by the first defendant as a General Power of Attorney holder of the third plaintiff in favour of second defendant and consequently the sale deed dated 21-6-2011 executed by the second defendant in favour of third defendant and the sale deed dated 8-9-2011 executed by third defendant in favour of fourth defendant are void ab-initio and not binding on the plaintiff and for possession and such other reliefs. The definite contention of plaintiff is that, schedule property is part and parcel of site No.4 which was originally purchased by the third plaintiff under the registered sale deed dated 23-3-1988 which is produced at Ex.P.2 from Smt.Padmavathi ammal and the same was gifted to the plaintiff No.1 and 2 by plaintiff No.3 under registered gift deed dated 13-3-2000 which is produced at Ex.P.3. The third plaintiff due to oversight as executed the GPA in favour of defendant No.1 as per Ex.P.4 dated 17-8-2002 and the same was revoked as per Ex.P.5 on 14-2-2007. The defendant No.1 has executed the sale deed on the basis the GPA dated 17-8-2002 which has been revoked on 14-2-2007. As on the date of execution of Ex.P.6 the defendant No.1 who was aware of revocation of GPA has 17 O.S.No.4066/2013 executed the sale deed in favour of defendant No.2 as per Ex.P.6 on 21-3-2007 without having any authority and subsequent sale deeds is executed by the defendant No.2 in favour of defendant 3 sale deed dated 21-6-2011 in respect of suit schedule property and the sale deed dated 8-9-2011 executed by the defendant No.3 in favour of defendant No.4 are null and void. On the other hand the defendant No.4 who has appeared before the court has filed written statement contending that, as on the date of purchase from defendant No.3 the khatha was standing in the name of defendant No.3 and he was the owner and his sale deeds were validly executed by previous vendors and defendant No.3 has executed valid registered sale deed in favour of defendant No.4 and now he is the owner in possession and enjoyment of property on the basis of sale deed dated 8-9-2011. Hence he seeks to dismiss the suit. Now there is no much dispute that, the suit property was purchased by the plaintiff No.3 under the registered sale deed dated 23-3-1988 certified copy of the same which is produced at Ex.P.2. On perusal of the same it makes clear that, she has purchased site No.4 carved out of Sy.No.14 18 O.S.No.4066/2013 Within the boundaries of East site No.5, West site No.3, North remaining property of same survey number, South property of Smt.Udupa and 20 feet road. The plaintiff No.3 has executed the gift deed of the very same property in favour of plaintiff No.1 and 2 on 13-3-2000 which is produced at Ex.P.3. On perusal of said document it is clear that, the plaintiff No.3 by exercising her right of the ownership as gifted the property to plaintiff No.1 and 2 who are none other than her daughters. The property covered under said gift deed is bounded with East site No.5, West site No.3, North private property, South 20 feet road, so it is clear that, the very same property which as purchased under Ex.P.2 is gifted by the plaintiff No.3 in favour of the plaintiff No.1 and 2. The said defendant No.3 has executed GPA dated 17-8-2002 in respect of the site No.4 measuring 27 ½ feet x 50 feet bounded with East property No.4B, West site No.3, North remaining portion of the property of Shankunthala Bhat, South road attached to Smt.Udupas property in favour of the defendant No.1. On the basis the said GPA the defendant No.1 has sold the property covered under Ex.P.4 GPA to his son defendant No.2 on 21-3- 19 O.S.No.4066/2013 2007 sale deed which is produced at Ex.P.6. Here at this juncture we have to considered that, as on the date of execution of GPA on 17-8-2002 the plaintiff No.3 was not at all owner of the site No.4 because site No.4 purchased by her as per Ex.P.2 was already gifted to plaintiff No.1 and 2 as per under Ex.P.3. When entire property is gifted by her in favour of plaintiff No.1 and 3 they remains nothing to execute the GPA. And moreover the GPA stated to have been executed by plaintiff No.3 as per Ex.P.4 has been revoked on 14-2-2007 and the same is published in the Sanje Vani news paper and moreover the cancellation of GPA as per Ex.P.5 is a registered instrument. When the plaintiff was not at all owner of the property and when the GPA is executed by the plaintiff No.3 is cancelled, the defendant No.1 has no authority to execute any sort of sale deed in favour of defendant No.2. And very important is that the plaintiff No.3 herself has no right to execute even GPA authorising the defendant No.1 to sell the property because she was not at all owner of property in view execution of gift deed. Under this circumstances when the alienation made by the defendant No.1 in favour of second 20 O.S.No.4066/2013 defendant is not at all binding. Hence issue No.1 is held in affirmative.
20. Issue No.2:- The sale deed executed by defendant No.2 in favour of defendant No.3 on 21-6-2011. The defendant No.2 has acquired the property by virtue of the sale deed dated 21-3-2007 executed by defendant No.1 in favour of defendant No.2. The defendant No.1 as a GPA holder of plaintiff No.3 has executed the sale deed in favour of defendant No.2 who is none other than his son. While answering issue No.1 this court has already held the plaintiff No.3 was not at all the owner as on the date execution of GPA on 17-8-2002 in favor of defendant No.1 was not at all the owner and more over the said GPA has been cancelled by the plaintiff No.3 on 14-2-2007 and same is published in the news paper. When defendant No.2 himself will not acquire the valid title through Ex.P.6 dated 21-3-2007 sale deed, is not having any title to execute the sale deed in favour of defendant No.3 hence the sale deed executed by defendant No.2 in favour of defendant No.3 is not binding on the plaintiffs. 21 O.S.No.4066/2013
21. Issue No.3:- As already this court has held that, the defendant No.1 was not authorized and the plaintiff No.3 was not having any title to authorize defendant No.1 to sell the property through GPA which is produced at Ex.P.4 and same is cancelled. Naturally the sale deed executed by defendant No.1 in favour of defendant No.2 is not binding has already held by this court while answering issue No.2. And when the defendant No.2 has not acquired valid title he is not suppose to transfer valid title in favour of defendant No.3 also. When defendant No.3 has not having valid title he also not entitled to execute valid registered sale deed in favour of defendant No.4. Hence the sale deed executed by defendant No.3 in favour of defendant No.4 is also not binding on the plaintiff and more over defendant No.4 who has filed the written statement but not cross examined P.W.1 nor adduced any oral evidence in his behalf. Under this circumstances this court no other go but to hold the plaintiffs have proved issue No.3 hence it is held in affirmative.
22 O.S.No.4066/2013
22. Issue No.4:- There is no dispute that, defendant No.4 is in possession and enjoyment of the suit schedule property. and this aspect came to the plaintiffs in the earlier suit filed in O.S.No.2597/2011. After filing the written statement by the defendant the plaintiffs filed I.A. to withdraw the suit with a liberty to file the fresh suit on the same cause of action for the comprehensive reliefs. And the court while passing orders on I.A.No.4 has granted liberty to file fresh comprehensive suit on the same cause of action. When the defendant No.4 admittedly in the possession of suit property having no valid title automatically he has to hand over the possession. Under this juncture I am of the opinion that the plaintiffs are entitled for possession, hence it is held in affirmative.
23. Issue No.5-:- In view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiffs is decreed.23 O.S.No.4066/2013
It is here by declared that, sale deed dated 21-3-2007 executed by the first defendant as a General Power of Attorney holder of the third plaintiff in favour of second defendant, which is duly registered as document No.68160/06-07 CD No.BLND 396 before the Sub-Registrar Bangalore North, and consequently the sale deed dated 21-6-2011 executed by the second defendant in favour of the third defendant registered as document No.PNY-1-02070-2011-12 C.D No.PNYD 473 before the Sub-Registrar, Peenya, Bangalore and sale deed dated 8-9-2011 executed by the third defendant in favour of fourth defendant duly registered as document No.PNY-1-05007/2011-2012 before the Sub-Registrar, Peenya, Bangalore as void ab-initio and not binding on the plaintiffs.
The fourth defendant is hereby directed to hand over the vacant possession of the suit property to the first and second plaintiffs within 3 months from the date of this judgment. If the defendant No.4 fails to hand over the possession then the plaintiffs are liberty to take the possession of the suit schedule property by enforcing the judgment and decree of this case.24 O.S.No.4066/2013
Draw a decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 5th day of March, 2020.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE Site bearing No. 4/1 (old No.4 and 25) katha No.289 PID No.1491/4 measuring East to West: 27.5 and North to South 50 ft situated at ward No.38, 3rd cross road, S.M.Road Potti garden, Jalahalli West, Bangalore bounded by;
East by: site No 04B
West by: Site No 03
North by: Private property
South by: 20 ft road
ANNEXURE
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Mr.Srisha.R Bhat
(b) Defendant's side :
NIL
25 O.S.No.4066/2013
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Original GPA dated 5-6-2013
Ex.P.2: Certified copy of the sale deed dated
30-3-1988
Ex.P.3: Certified copy of gift deed dated 13-3-2000
Ex.P.4: Certified copy of GPA dated 17-8-2002
Ex.P.5: Revocation of GPA
Ex.P.6: Certified copy of the sale deed dated
21-3-2007
Ex.P.7: Certified copy of sale deed dated
21-6-2011
Ex.P.8: Certified copy of sale deed dated 8-9-2011
Ex.P.9: Certified copy of plaint
Ex.P.10 Certified copy of WS in O.S.No.2597/2011
Ex.P.11 Certified copy of order passed in
O.S.No.2597/2011 on I.A.No.4
Ex.P.12 Demand register extract
Ex.P.13 Sanje Vani news paper dated 23-2-2007
Ex.P.13 Public notice published in Sanje Vani news
(a) paper.
(b) Defendants side :
NIL
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.