Bangalore District Court
Sri. Riyaz vs Sri. Saidani Bi on 10 August, 2020
1 OS.No.16751/2002
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for
AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Judgment in suits
(R.P.91)
Present: Sri. Krishnaji Baburao Patil, B.Com., LL.B.(Spl.),
(Name of the Presiding Judge)
Dated: This the 10th day of August 2020
Original suit No.16751/2002
Plaintiffs:- 1. Sri. Riyaz,
S/o Late Pyarusab,
Since dead by his LR's.
1(a) Smt. Mubeena,
W/o Late Riyaz,
Aged about 40 years,
1(b) Sri. Ayaz,
S/o Late Riyaz,
Aged about 24 years,
1(c) Sri. Fiaz,
S/o Late Riyaz,
Aged about 20 years,
1(d) Sameena,
D/o Late Riyaz,
Aged about 10 years,
Since she is minor rep. By
Her natural guardian mother
Plaintiff No.1(a).
2 OS.No.16751/2002
All are residing at
No.69, 1st Main, 2nd Cross,
Rajendra Nagar,
Koramangala 8th Block,
Bangalore-560 047.
2. Mr. Samiulla,
S/o Late Pyarusab,
Aged about major,
R/at No.69, 1st Main, 2nd Cross,
Rajendra Nagar,
Koramangala 8th Block,
Bangalore-560 047.
(By Pleader Sri. Rasheed Khan Adv., for
LRs of Plaintiff No.1, Sri. V.Chandrashekhar
Adv., for Plaintiff No.2)
V/s
Defendants:- 1. Sri. Saidani Bi,
W/o Late Ranu Saheb @ Ahmed
Hussain Saheb,
Aged about 65 years,
R/at Shikari Palya,
Shikaripalya Post,
Bangalore South Taluk,
Bangalore.
2. Bakshu,
S/o Late Late Ranu Saheb @ Ahmed
Hussain Saheb,
Aged about 45 years,
R/at Shikari Palya,
Shikaripalya Post,
Bangalore South Taluk,
Bangalore.
3 OS.No.16751/2002
3. Babu,
S/o Late Late Ranu Saheb @ Ahmed
Hussain Saheb,
Aged about 30 years,
R/at Shikari Palya,
Shikaripalya Post,
Bangalore South Taluk,
Bangalore.
4. Manohar,
S/o not known,
Aged about major, Ramesh Farm,
Gowripalya,
Bangalore.
5. M. Saraswathi,
D/o Kannaya Naidu,
C/o Manohar,
'Lahari' Cassette Recording Company,
3rd Cross, Chamarajpet,
Bangalore-560 018.
6. West One Electronic City Private Ltd.,
A Company incorporated under the
Companies Act 1956,
Having registered office at Lahari
Tower, No.209,
Albert Victor Road,
1st Main, Chamarajpet,
Bangalore-560 004.
7. M/s Embassy Brindavan Developers,
Rep. By its Partner,
Mr. K. Kishan Chand,
Office at 1st Floor,
Embassy Point,
No.150, Infantry Road,
Bangalore-560 001.
4 OS.No.16751/2002
8. M/s Embassy Brindavan Developers,
Rep. By its Partner,
M/s Density Developers Pvt., Ltd.,
Rep. By its authorized signatory
Mr. Narpat Singh Chovaria
Office at N.Appanna Building,
Nagamangala Village,
Hegganahalli Post,
Kundanahalli Hobli,
Devanahalli Taluk,
Bangalore-562 110.
9. M/s Brindavan Beverages Pvt., Ltd.,
Rep. By its authorized signatory,
Mr. Prakash Ladhani,
Office at No.214/33,
7th Cross, Cunningham Road,
Vasanth Nagar,
Bangalore-560 052.
10. Mr. P. Krishinchand,
S/o Late H. Parasaram,
R/at No.24, SNS Villa,
Lavellay Road,
Bangalore-560 001.
11. Mr. Manoharilal J. Wadhwa,
S/o Jethananad Prasaram,
R/at No.7, 3rd Cross,
Jalasharan, Lakshmi Road,
Shanthinagar,
Bangalore-560 027.
12. Smt. Gulab,
D/o Late Pyaru Saheb,
Aged about 51 years,
R/o Hullimangala Jigani,
Shikaripalya Jigani,
Bangalore-560 105.
5 OS.No.16751/2002
(D.1 to D.3 - Ex-Parte, Sri. G. Vedavyasachar
Adv., for D.4, Sri. K. Suman Adv., for D.5, Sri. A
Murali Adv., for D.6, Sri. Suraj Govinda Raj Adv.,
for D.7 to 11, Sri. Govindappa Adv., for D.12)
Date of Institution of the suit 3.11.1998
Nature of the (Suit or pro-note, suit for Declaration and
declaration and possession, suit for Injunction
injunction, etc.)
Date of the commencement of 15.4.2013
recording of the Evidence
Date on which the Judgment was 10.8.2020
pronounced
Year/s Month/s Days
Total duration 21 09 07
JUDGMENT
The present suit is filed by the Plaintiffs against the Defendants for the relief of declaration that the Sale Deed obtained by the Defendants in respect of the Suit Schedule Property intersay between them are null and void and not binding on the Plaintiffs and for permanent injunction restraining the Defendants from interfering with the Plaintiffs possession 6 OS.No.16751/2002 and enjoyment of the Suit Schedule Property and to declare that the Plaintiffs are the sole owners of the Suit Schedule Property and to hold that the alleged Sale Deed dtd: 23.4.2004 in favour of 7th Defendant by 5th Defendant, subsequent Sale Deed dtd:14.2.2008 executed by 7th Defendant in favour of 6 th Defendant to the extent of Suit Schedule Property are not binding on the Plaintiffs and for other reliefs.
2. The Plaintiffs have filed the present suit in the form of P.Mis as contemplated under Section XXXIII Rule 3 R/w Section 151 of CPC., in that rule P.Misc.No.10193/1998, the case was registered and the same was allowed by this Court on 7.9.2002. On the basis of the said order the present suit was registered as OS.No.16751/2002.
3. Initially the present suit was filed against the Defendant No.1 to 4 only. During that time Defendant No.4 appeared and filed his written statement. After due enquiry the suit was decreed on 13.9.2013. During the course of the said trial Defendant No.5 was added and contested the suit and after decree the Defendant No.5 approached the Hon'ble High Court 7 OS.No.16751/2002 of Karnataka by filing RFA No.1681/2013 and the said matter was remanded by the Hon'ble High Court by order dtd:
24.8.2015. After remained Defendant No.1 to 4 remained ex-
parte. The original Defendant No.4 got examined himself as representative of Defendant No.6 as DW.1 in the present case and by that time the written statement filed by Defendant No.4 before remand was misplaced and the same was got marked by the Plaintiff by confronting the same to DW.1 as Ex.P.26. During the course of trial Ex.P.3 to Ex.P.8 were misplaced and hence as per the order of this Court the certified copies of Ex.P.3 to Ex.P.7 were got marked. The certified copy of E.xP.8 was not available and hence the xerox copy of RTC i.e., Ex.P.8 was produced. Subsequently, Ex.P.5 to Ex.P.7 were also not available in the file. At the time of arguments, both the Advocate for Plaintiffs and Defendants were consented to dispose of matter in the absence of Ex.P.5 to Ex.P.7 also.
4. After remand Defendant No.6 to 11 included by Plaintiff and also got amended the plaint accordingly. The Defendant No.12 got impleaded herself in the present suit. 8 OS.No.16751/2002
5. During the course of trial Plaintiff No.1 died and his LRs were brought on record as Plaintiff No.1(a) to (d).
6. It is the contention of the Plaintiffs that the 1 st Plaintiff and 2nd Plaintiff are the sons of Late Pyarusab S/o Laloosab who was married with Late Bibijan and out of their wedlock the two children were born namely Riyaz and Samiulla i.e., Plaintiff No.1 and 2. The said Pyarusab purchased the Suit Schedule Property on 13.3.1967 from one Yusuff Sab S/o Ibrahim Sab for the consideration of Rs.300/- under registered Sale Deed dtd:
13.3.1967. The Suit Schedule Property measures 2 acres 20 guntas of Sy.No.69/1 of Dodda Thogur Village, Begur Hobli, Bangalore South Taluk.
7. One Late Smt. Fathima Bi @ Gorima who was residing at Mohammed Sab Palya, Yelahanka Hobli, Bangalore South Taluk who was a stranger stating that she was the wife of Late Pyarusab the father of the Plaintiffs after the death of Pyarusab on 2.6.1969, the said Fathima @ Gorima without having any right, title and interest over the Suit Schedule Property sold the Suit Schedule Property in favour of one Ahmed Hussain Saheb @ Ranu Saheb S/o Late Imamsaheb residing at Shikaripalya on 9 OS.No.16751/2002 13.3.1970 alleging that said Pyarusab mortgaged the Suit Schedule Property to Ahmed Hussain Saheb @ Ranu Saheb for the sum of Rs.300/- and collected Rs.200/- extra amount for sale consideration and executed the above said Sale Deed.
8. Late Ahmed Hussain Saheb @ Ranu Saheb, husband of 1st Defendant, who has alienated the Suit Schedule Property in favour of father of 5th Defendant without having right, title, interest over the Suit Schedule Property. The said Ahmed Hussain Saheb @ Ranu Saheb who was the husband of 1 st Defendant and father of 2nd and 3rd Defendant.
9. The 5th Defendant is total stranger to the Suit Schedule Property and inspite of it she has illegally obtained the mutation and RTC entries for the entire extent in Sy.No.69/1 New No.154 which is the survey number of the Suit Schedule Property. She has not mentioned as to how she derived right over the entire extent in the said survey number in her objections to the impleading application filed. It is stated that she has nothing to do with the Suit Schedule Property. In this regard, the Plaintiffs reserve their right and liberty to amend the plaint in case the Plaintiffs came to know about any illegal document possessed 10 OS.No.16751/2002 by her in respect of the Suit Schedule Property, The father of Defendant No.5 obtained illegal Sale Deed dtd: 6.8.1988 which is not binding on the Plaintiff and the same is executed by Mohammed Husain Saheb @ Ranu Saheb and Defendant No.1 and 2, without having right or power, hence the Sale Deed is not binding on the Plaintiffs. The Plaintiffs are unable to obtain the mutation extract of MR No.41/1992-93, 21/1998-99 inspite of the efforts made by the Plaintiffs. Hence, the 5 th Defendant cannot have any claim over the Suit Schedule Property. The alleged RTC entries standing in her favour for the entire extent in the said survey number is highly illegal and not binding on the Plaintiffs. In this regard, the Plaintiffs are taking necessary steps for correct of RTC entries before the appropriate authority. Taking undue advantage of the wrong revenue entries she is making hectic efforts to dispossess the Plaintiffs from the Suit Schedule Property.
10. The 4th Defendant even went to the extent of threatening the Plaintiffs of dire consequences, if they demand their legitimate Suit Schedule Property mentioned therein. Further, the 5th Defendant, 2nd and 3rd Defendants even started 11 OS.No.16751/2002 sending goondas and threatened the Plaintiffs, if they does not yield to the illegal and unlawful pressure of the defendants.
11. The 5th Defendant without having any manner of right, title or interest over the Suit Schedule Property, she has alienated the larger extent of 6 acres 24 guntas, in old Sy.No.69, new Sy.No.154 and said extents includes the extent of the Suit Schedule Property under the registered Sale Deed dtd:23.4.2004. The said alleged fact has come to the knowledge of the Plaintiffs only in the appeal preferred by the 5 th Defendant against the earlier Judgment and Decree of this Court before the Hon'ble High Court of Karnataka in RFA No.1681/2013. The Hon'ble High Court of Karnataka has remanded the matter for retrial by this Court by order dtd: 13.7.2015. Thereafter, 6 th Defendant made an impleading application in RFA. It is further learnt that the Plaintiff in the said appeal that later on the 7 th Defendant also alleged alienated the said entire extent inclusive of the Suit Schedule Property in favour of Lahari Technopolis Pvt., Ltd., a registered company represented by its authorized signatory Sri. D. Thulasiram on 14.2.2008. The said alleged purchaser has acquired a new name called West One Electronic 12 OS.No.16751/2002 City Pvt., Ltd., the 6th Defendant through his authorized signatory by name Kevin G. Kochar in his affidavit sworn to by him in support of IA No.1 filed in RFA for impleading the 6 th Defendant as a party to the said proceedings. On 13.7.2015 the Plaintiffs learnt about the said alleged transaction for the first time. The said later alleged Sale Deed came to be registered on 16.2.2008 in the Jurisdictional Sub-Registrar. These alleged sale transactions have taken place during the pendency of the suit and without any knowledge of the Plaintiffs. Those illegal transactions are effected by incompetent persons and as such those alleged purchasers have not acquired any right, title, interest or lawful possession over the Suit Schedule Property. Further it is contended hat even their alleged vendor had no better title and thereby the vendor and vendor's vendor cannot transfer any superior title to the last purchaser. According, the 6th Defendant has not acquired any right, title or interest over the Suit Schedule Property in any manner. It is an act of clear collusion amongst those persons. Those alleged transactions are not binding on the Plaintiff in any manner and those transactions are subject to result of the above suit, as doctrine 13 OS.No.16751/2002 of lispendency is applicable. That apart it is stated that none of those purchasers including 5th Defendant are the bonafide purchasers and as such the provisions of TP Act cannot be availed by them. The said illegal transactions cannot effect the interest, right, title and possession of the Plaintiffs over the Suit Schedule Property. The cause of action for the suit on 21.9.1998 when the Plaintiff went to the Suit Schedule Property, on 13.7.2015 when the Plaintiff for the first time learn about the alleged transaction of sale in respect of the Suit Schedule Property amongst the Defendant No.5 to 11 intersay and on subsequent dates thereto within the jurisdiction of this Court. Hence, prayed for Judgment and Decree against the Defendant directing the Defendants not to disturb the Plaintiffs the absolute and sole owner of the Suit Schedule Property and the sale is null and void and for such other reliefs as this Court deems fit. Further, the Plaintiffs re-molded the prayer and therefore, the Plaintiffs prays for Judgment and Decree and to issue permanent injunction restraining the Defendants, their legal heirs, against the Defendants and to declare that the alleged Sale Deeds obtained by Defendants in the said Suit 14 OS.No.16751/2002 Schedule Property intersay between them are null and void and not binding on the Plaintiffs and to hold that the Sale Deed dtd:23.4.2004 in favour of Defendant No.7 by 5 th Defendant to the extent of Suit Schedule Property and also subsequent Sale Deed dtd: 14.2.2008 executed by the 7 th Defendant in favour of 6th Defendant to the extent of Suit Schedule Property are not binding on the Plaintiff in any manner, nor the same can take away the right, title, interest of the Plaintiffs over the Suit Schedule Property in any manner and for permanent injunction restraining the Defendants or any person claiming right through them from interfering with the possession and enjoyment of the Plaintiffs over the Suit Schedule Property as absolute owners in any manner.
12. Initially the Defendant No.4 filed written statement denying all the plaint allegations specifically and further contented that this Defendant is not the owner of the Suit Schedule Property. He has not entered into any transactions with the said Ranu Saheb and Plaintiffs have not made out any case whatsoever in the present suit. The suit is filed with an oblique motive and hence prays for dismiss the suit.
15 OS.No.16751/2002
13. The 5th Defendant has filed written statement denying all the allegations specifically and further contended that the Defendant No.4 is not the owner of the Suit Schedule Property and not entered into any transaction with the said Ranu Saheb as alleged by the Plaintiff. No right of the Plaintiff is forthcoming in the entire plaint and as to how they are entitled to file the suit is also not found in the plaint. There is no even single averments as to semblance of legal right of the Plaintiffs. There is no cause of action to file this suit and one urged is false and legally untenable. The court fee paid by the Plaintiffs is not property. The suit is not properly valued. The Plaintiffs are required to make out the case on the basis of their right and title in respect of the Suit Schedule Property and also make out a case for granting the relief of possession as prayed for and there is no averment in the entire plaint as to when the Plaintiffs had the possession to the Suit Schedule Property and when they lost the same. Hence, they prayed to dismiss the suit.
14. The 5th Defendant had filed additional written statement contending that the Plaintiffs have sought for the 16 OS.No.16751/2002 prayer by way of amendment seeking declaration that the Sale Deed executed by Fathima Bi @ Gorima in favour of Ahmed Hussain dtd: 3.3.1970 in respect of the Suit Schedule Property is null and void and not binding on the Plaintiffs. Similarly, they have also sought for declarations to the extent that the Sale Deed dtd: 16.8.1988, Sale Deed dtd: 23.4.2004 and the Sale Deed dtd: 16.2.2008 are null and void and not binding on the Plaintiffs and admittedly these reliefs are hopelessly barred by limitation and are liable to be rejected on this ground itself. The execution of the Sale Deeds were within the knowledge of the Plaintiffs right from the very inception and they ought to have sought for such declaratory reliefs within the period of three years from the date of execution of the Sale Deeds. The Plaintiffs in the present suit has amended the suit on several occasions, however there was no whisper of the Sale Deeds dtd:
23.4.2004 and 16.2.2008 respectively. That apart, even though the Plaintiff has amended the plaint on multiple occasions, they have not sought for incorporating the prayers though they were very well aware of the Sale Deeds. Hence, it is evidently clear that the Plaintiffs themselves are well aware of the fact that 17 OS.No.16751/2002 these Sale Deeds and the fact that these Sale Deeds are valid and binding upon them. Therefore, the Plaintiffs are now precluded and estopped from seeking such frivolous reliefs under the guise of there being a direction from this Hon'ble Court.
15. As per Section 31 of the Specific Relief Act, 1963, against any person where a written instrument (Sale Deed in the present case on hand) is void or voidable, he shall seek for its cancellation before the appropriate court. At this juncture, when Section 31 of the Specific Relief Act, 1963 is read with Order II Rule 2(3) of CPC and Limitation Act, 1963, the Plaintiffs for the reasons best known to them have omitted to seek cancellation of the Sale Deeds within the period of Limitation and now at this belated stage they cannot seek to rectify their lapses. At the time of filing the suit the Plaintiffs herein very vaguely and capriciously seeks cancellation of Sale Deed without there being any specifics with regard to the details of the Sale Deeds, now at this belated stage, the Plaintiffs cannot shelter under the imprecise and ambiguous statements. The Plaintiffs are not entitled for any prayer sought for. Hence, prayed for dismiss the 18 OS.No.16751/2002 suit.
16. The 6th Defendant filed his written statement contending that the suit of the Plaintiff is hopelessly barred by law of limitation and deserved to be dismiss on that ground alone. The instant suit is filed seeking reliefs in respect of the property bearing No.69/1 and measuring 2 acres 20 guntas. The Suit Schedule Property was owned by one Syed Pyaru Saheb fifty years back, having purchased it under a Sale Deed dtd:
13.3.1967 from one Yusuff Sab. It is allegation of the Plaintiffs that they are the sons of Late Syed Pyaru and all the transactions in respect of the Suit Schedule Property spanning almost 40 years after the death of Syed Pyaru are invalid. Such later transactions are described in detail later in this written statement. The Plaintiffs are challenging the Sale Deeds dtd:
13.3.1970, 18.8.1988, 23.4.2004 and 14.2.2008 under which the Suit Schedule Property has validly changed hands from time to time. The present suit is filed in the year 2002 is severely barred by the law of limitation. Pertinently, the Defendant No.5 who was the owner of the Suit Schedule Property at the time of institution of the suit was not even made a party to the suit 19 OS.No.16751/2002 originally. She was later impleaded on 12.7.2010, by which time the Suit Schedule Property had further changed hands twice.
The Defendant No.7 and the answering Defendant who had already acquired ownership by then were not made parties event at that stage. It is only after the Judgment and Decree dtd: 13.9.2013 was set aside by the Hon'ble High Court of Karnataka on 24.8.2015 in RFA No.1681/2013 and the matter was remanded back for fresh trial by impleading all the necessary parties that the Plaintiff took measures to implead the Defendant No.6 to 11. Therefore, it is clear that even the amendments made from time to time thereby impleading Defendant No.5 to 11 and challenging the respective title deeds by virtue of which the said Defendants had acquired the Suit Schedule Property, were all made much after the expiry of the period of limitation under the law.
17. The instant suit attracts court fee based on Section 24(b) read with Article I of Schedule I of the Karnataka Court Fee and Suit Valuation Act, 1958 and the court fee needs to be calculated on the basis of one-half of the market value of the Suit Schedule Property. The Plaintiffs have not paid the requisite 20 OS.No.16751/2002 court fees and on that count also the instant suit is liable to be dismissed. The suit also suffers from non-impleadment of necessary parties. The Plaintiffs are allegedly the sons of Late Syed Pyaru. It is the allegation of the Plaintiffs that the transfer of the Suit Schedule Property done by Fathima Bi in favour of Ahmed Hussain on 13.3.1970 was invalid as the said Fathima Bi was not the wife of Late Syed Pyaru. Since that is the basis of the entire suit, it was imperative for the Plaintiffs to implead the said Fathima Bi as a party to the instant suit. The non- impleadment of Fathima Bi has also rendered the suit bad in law and on this ground also the suit deserves to be dismissed. The suit deserves to be dismissed also because the Plaintiffs have approached this Hon'ble Court with unclean hands. As mentioned earlier, when the suit was filed in 2002, the then owner of the Suit Schedule Property i.e., Defendant No.5 was not made as party. Eventually by the time she was made a party in the year 2010, the Suit Schedule Property had already changed hands twice and yet the subsequent transferees Defendant No.5 and 7 were not made as parties even at that stage. It is clear case of fraud on the court was engineered and 21 OS.No.16751/2002 orchestrated by the Plaintiffs in the instant matter and hence plaint deserves to be dismissed. Further, it is contended that the Defendant is the bonafide purchaser of the Suit Schedule Property and therefore detail of the para wise contents of the plaint is denied in the written statement. The Sy.No.69 which includes the Suit Schedule Property consists of 7 acres 2 guntas and was originally owned by one Khasim Sab. The Property in Sy.No.69 came to be conveyed in the following manner to one Ahmed Hussain:
By a Sale Deed dtd: 19.12.1967 Khasim Sab conveyed a portion of the Sy.No.69 measuring 4 acres and 25 guntas in favour of Ahmed Hussain and Abdul Basheer. Pursuant to the sale as aforesaid revenue records were mutated from the name of Khasim Sab to the names of Ahmed Hussain and Abdul Basheer vide MR No.5/1981-82 in respect of portion of Sy.No.69, measuring 4 acres and 25 guntas. By another Sale Deed dtd:
16.6.1962 Khasim Saheb conveyed the remaining 2 acres 20 guntas i.e., Suit Schedule Property to one Yusuff. Thereafter by a Sale Deed dtd: 13.3.1967, Yusuff sold the Suit Schedule Property to one Syed Pyaru. The said Syed Pyaru created a 22 OS.No.16751/2002 mortgage over the Suit Schedule Property in favour of the aforementioned Ahmed Hussain under a registered Mortgage Deed dtd: 2.6.1969. Following the death of Syed Pyaru, in furtherance of the said mortgage which had remained undischarged Ahmed Hussain acquired the Suit Schedule Property from Fathima Bi, the wife of Late Syed Pyaru, under a Sale Deed dtd: 13.3.1970. Pursuant to the sale by Fathima Bi to Ahmed Hussain, the revenue records in respect of the Suit Schedule Property were mutated to the name of Ahmed Hussain vide MR No.4/1981-82. By Sale Deed dtd: 16.8.1988 Ahmed Hussain, his wife and children and Abdul Basheer, his wife and son conveyed that portion of Sy.No.69 measuring 4 acres and 25 guntas to P. Kannaiah Naidu. Pursuant to the sale by Ahmed Hussain and Abdul Basheer and others as stated supra revenue records in respect of the said extent of 4 acres 25 guntas were mutated to the name of P. Kannaiah Naidu vide MR No.5/1988-
89. By a Sale Deed dtd: 16.8.1988 Ahmed Hussain, his wife and children conveyed the remaining part of the Sy.No.69 i.e., Suit Schedule Property also to P. Kannaiah Naidu. Pursuant to the same, the revenue records in respect of the Suit Schedule 23 OS.No.16751/2002 Property were mutated to the name of P. Kannaiah Naidu Vide MR No.6/1988-89. The said Kannaiah Naidu executed a Will bequeathing the property under Sy.No.69 in favour of his daughter the Defendant No.5 under his Will dtd: 10.5.1990.
Following the death of Kannaiah Naidu on 17.8.1990 the revenue records were mutated to the name of his daughter and legatee Smt. Saraswathi vide MR No.41/1991-92. The Sy.No.69 was re-assessed and assigned new Sy.No.154 for an extent of 7 acres 2 guntas in terms of the order dtd: 25.4.1998 passed I the appeal No.RA (S) 33/1997-98. The said extent of 7 acres 2 guntas was converted from agricultural user to non-agricultural industrial user as evidenced by Conversion Certificate dtd:
4.7.2000. The Khatha with respect to the said converted portion of 7 acres 2 guntas was registered in the name of the Defendant No.5 in the records of the Doddathoguru Village Panchayath.
18. The Defendant No.5 conveyed all that piece and parcel of the property bearing katha No.798/702/69/154 of Doddathoguru Village, Begur Hobli, Bangalore South Taluk, admeasuring 6 acres 24 guntas in favour of Defendant No.7 under a Sale Deed dtd: 23.4.2004. The Defendant No.7 24 OS.No.16751/2002 thereafter conveyed the property including the Suit Schedule Property in favour of the 6th Defendant under a Sale Deed dtd:
14.2.2008. Pursuant to the above said sales the khatha with respect to the property including the Suit Schedule Property presently stands in the name of 6 th Defendant in the records of Doddathoguru Village Panchayath. In the meanwhile the year 2002 the Plaintiff filed the instant suit without making the then owner Defendant No.5 as party, notwithstanding that the public records revealed that Defendant No.5 was the owner. Though Defendant No.1 to 4 in the original suit were served, they remained absent and were placed ex-parte. This clearly indicating the collusion between the Plaintiffs and Defendant No.1 to 4. The Defendant No.5 was later impleaded on 12.7.2010, by that time the Suit Schedule Property had further changed hands twice. The transferees, i.e., the Defendant No.7 and Defendant No.6 were not made parties even at that stage, notwithstanding the public records showing the transfer of the Suit Schedule Property in favour of Defendant No.7 and then to the Defendant No.6. The Original Suit was dismissed for non-
prosecution on 9.12.2010 and was later restored to file on 25 OS.No.16751/2002 14.2.2013 by an order in Miscellaneous Petition No.25229/2011. On 4.4.2013, upon restoration of the Original Suit, the Plaint was amended. The evidence appears to have commenced on the same day. The evidence continued to be recorded on 15.4.2013. On 29.5.2013 the Defendant No.5 filed her written statement and also the legal representative of the original Plaintiff No.1 were brought on record. Again on 2.7.2013 another application for amendment was allowed permitting the Plaintiffs to introduce new facts and an additional prayer. The Defendant No.5 failed to contest the matter properly as she had no interest in the same as she had already sold the Suit Schedule Property. The Judgment and Decree came to be pronounced on 13.9.2013. The Defendant No.5 filed RFA No.1681/2013 before the Hon'ble High Court of Karnataka, once again without disclosing that the Suit Schedule Property had already changed hands. It was during the pendency of the said appeal the representatives of the Defendant No.6 came to know about the Original Suit and the appeal and promptly filed an application seeking impleadment. The Hon'ble High Court by order dtd: 15.7.2015 impleaded the Defendant No.6 as Respondent No.7. On 26 OS.No.16751/2002 24.8.2015 after hearing all the parties, the appeal was allowed. Thus, the decree dtd: 13.9.2013 was set aside and the present suit has been remanded for fresh trial. The Hon'ble High Court specifically observed that to avoid future complications, liberty is granted to the parties to file appropriate applications for addition of necessary parties. Thereby, the Plaintiff took measures to implead the Defendant Nos.6 to 11.
19. In the meanwhile another party Gulab appeared and filed an application to implead herself as an additional Plaintiff, claiming to be the sister of the Plaintiffs. This Court directed that she can be impleaded as an additional Defendant and not as a co-Plaintiff. Pursuant to the same, she has now been arrayed as Defendant No.12. This Defendant is the bonafide purchaser of the Suit Schedule Property under law who purchased the Suit Schedule Property without any notice of claims of the Plaintiffs and for adequate value and whose rights over the Suit Schedule Property cannot be disturbed by third parties acting under the Plaintiff, the Defendant No.6 has denied the allegations made by the Plaintiffs in the plaint specifically in para wise. He further contended and reiterated that the identity of the Plaintiffs has 27 OS.No.16751/2002 not been established and their locus-standi and interest in the matter have not been proved. There is no proof to substantiate that Fathima Bi was not the wife of Late Syed Pyaru or that the sale done by her almost 50 years ago in furtherance to the undischarged registered mortgage created by Syed Pyaru during his lifetime is invalid. The Plaintiffs have approached this Court much after the expiry of the period of limitation and have also been clearly guilty of trying to mislead this Court by concealing the relevant facts and by indulging in fraud on this Court. In any case, the Defendant No.6 is a bonafide purchaser of the Schedule Property who purchased the Suit Schedule Property without any notice of the claims of the Plaintiffs and for adequate value and the rights of the Defendant No.6 cannot be whisked away and hence, prayed for dismiss the suit with exemplary costs.
20. The Defendant No.6 has filed additional written statement contending that the earlier written statement be read as part and parcel of this Defendant's written statement. The claim made by the Plaintiff is hopelessly barred by time. 28 OS.No.16751/2002
21. The 8th Defendant filed his written statement denying all the contentions of the Plaintiffs specifically and further contended that the suit of the Plaintiffs is false, frivolous and vexatious and is not maintainable either in law or on facts and hence the same is liable to be dismissed in limine. The Plaintiffs have not approached this Court with clean hands. The Plaintiffs are guilty of suppressing material facts and misrepresenting the facts before this Court, that amounts to Suppressio Veri Suggestio Falsi based on which no relief could be granted by this Court on the claim made by the Plaintiff. The suit is filed with the sole intention of harassing and blackmailing Defendant No.8 to part with huge sums of money and also to defame him. The suit is totally false and liable to be dismissed in limine. Sine, the Plaintiffs have suppressed and misrepresented various material facts in the suit before this Court. Hence, it becomes imperative for Defendant No.8 to explaint the right, title and interest of Defendant No.8 over the Suit Schedule Property for complete and effective adjudication of the suit.
22. The property comprised in Sy.No.69 situated at Doddathoguru Village, Beguru Hobli, Bangalore South Taluk 29 OS.No.16751/2002 totally measuring 7 acres 5 guntas was originally belonged to one H.C. Narayanaswamy. H.C. Narayanaswamy sold the said land to one Kasim Sab S/o Late Bade Sab under a registered Sale Deed dtd: 24.3.1951. Kasim Sab S/o Late Bade Sab have become the absolute owner of the said land and was enjoying the said land since he was having right, title and interest over the said property. On 28.6.1962 Kasim Sab sold 2 acres 20 guntas out of 7 acres 5 guntas in favour of one Yousuf Sab S/o Ibrahim Sab under a registered Sale Deed dtd: 28.6.1962 and was put in possession to the extent of 2 acres 20 guntas. The said Yusuf Sab S/o Ibrahim Sab in turn have sold 2 acres 20 guntas in favour of one Syed Pyaru Sab under a registered Sale Deed dtd: 13.3.1967. By virtue of the said registered Sale Deed dtd: 13.3.1967 Syed Pyaru Sab became the absolute owner of land to the extent of 2 acres 20 guntas. One Syed Pyaru Sab was the owner of the land measuring 2 acres 20 guntas of land in Sy.No.69 of Doddathoguru Village, Begur Hobli, Bangalore South Taluk i.e., the Suit Schedule Property. Syed Pyaru Sab died leaving behind his wife Fathima Bi @ Gorima as his only legal heir. It is submitted that Fathima Bi @ Gorima wife of Syed Pyaru 30 OS.No.16751/2002 Sab sold the entire 2 acres 20 guntas of land in favour of Ahmed Hussain i.e., the husband of Defendant No.1 as per Sale Deed dtd: 13.3.1970.
23. One Kasim Sab S/o Late Bade Sab was the owner of 4 acres 24 guntas of land being portion of Sy.No.69 wrongly written as 69/1 situated at Doddathoguru Village, Begur Hobli, Bangalore South Taluk. The said Kasim Sab S/o Late Bade Sab sold the said property under registered Sale Deed dtd:28.3.1968 in favour of Ahmed Hussain son of Late Imam Sab i.e., Defendant No.6 and Abdul Bashir S/o Raza Ahmed.
24. Ahmed Hussain S/o Imam Sab along with his wife Syedan Bi and sons Baksh and Babu i.e., Defendant No.1, 2 and 3 respectively sold the said 2 acres 20 guntas of the Suit Schedule Property being portion of Sy.No.69 wrongly written as 69/1 situated at Doddathoguru Village, Begur Hobli, Bangalore South Taluk, in favour of P. Kannaiah Naidu S/o Purushothama Naidu i.e., father of Defendant No.5 under registered Sale Deed dtd: 16.8.1988. The said sale transaction is mutated in the Mutation Register and entered as MR No.6/88-89. 31 OS.No.16751/2002
25. This Ahmed Hussain S/o Imam Sab along with his wife Saidan Bi and sons Baksh and Babu i.e., Defendant No.1, 2 and 3 respectively and Abdul Basheer son of Raza Ahmed along with his wife Imam Bi and son Fiaz, sold 4 acres 25 guntas of land being portion of Sy.No.69 wrongly written as 69/1 situated at Doddathoguru Village, Begur Hobli, Bangalore South Taluk, in favour of P. Kannaiah Naidu i.e., father of Defendant No.5 under registered Sale Deed dtd: 16.8.1988. The said sale transaction was mutated in the Mutation Register under MR No.5/88-89. Thus, P. Kannaiah Naidu i.e., the father of Defendant No.5 became the absolute owner of 7 acres 5 guntas of land in Sy.No.69 of Doddathoguru Village, Begur Hobli, Bangalore South Taluk.
26. P. Kannaiah Naidu S/o Purushothama Naidu i.e., father of Defendant No.5 died on 17.8.1990 leaving behind his last Will and Testament dtd: 10.5.1990. Under th e said Will the above mentioned property measuring 7 acres 5 guntas in Sy.No.69 of Doddathoguru Village, Begur Hobli, Bangalore South Taluk, was bequeathed to Ms. Saraswathi D/o Late P. Kannaiahh Naidu i.e., the Defendant No.5. Accordingly mutation was changed as per 32 OS.No.16751/2002 MR No.41/1992-93. In Pursuant thereto, the Defendant No.5 became the absolute owner of the entire 7 acres 5 guntas of Sy.No.69 of Doddathoguru Village, Begur Hobli, Bangalore South Taluk. The said Sy.No.69 was reassessed and assigned new No.154, measuring 7 acres 5 guntas in Sy.No.69 of Doddathoguru Village, Begur Hobli, Bangalore South Taluk, by order dtd: 25.4.1998 in Appeal No.33/97-98 and the mutation was registered in the name of Defendant No.5 and according MR.No.21/1998-99 was mutated. In pursuant thereto, Defendant No.5 got converted the entire 7 acres 2 guntas of land in Sy.No.154 Old No.69 from agricultural to non-agricultural use by order of DC dtd: 4.7.2000. Thereafter, on the application made by Ms. Saraswathi i.e., Defendant No.5 the Suit Schedule Property was assigned separate Khata No.798/702 by the Doddathoguru Village Panchayath, Begur Hobli, Bangalore South Taluk. The Defendant No.5 being the lawful owner having right, title, interest and possession has sold the property comprised in Sy.No.154 (Old No.69) of Doddathoguru Village, Begur Hobli, Bangalore South Taluk, measuring to an extent of 6 acres 24 guntas including the Suit Schedule Property measuring to an 33 OS.No.16751/2002 extent of 2 acres 20 guntas in favour of Defendant No.8 under the registered Sale Deed dtd: 23.4.2004. This Defendant No.8 came into actual and physical possession of the Suit Schedule Property and exercised its right, title and interest over the Suit Schedule Property. The Defendant No.8 being lawful owner of the property including Suit Schedule Property has sold the entire property measuring to the extent of 6 acres 24 guntas including the Suit Schedule Property measuring to the extent of 2 acres 20 guntas in favour of M/s Lahari Techno Polis Pvt., Ltd., Bangalore, under registered Sale Deed dtd: 14.2.2008. Thus the M/s Lahari Techno Polis Private Ltd., came into actual possession of the Suit Schedule Property and exercising its right, title and interest over the Suit Schedule Property. One Ammer Bi and Sharifa Bi calling themselves to be the daughters of Janab Khasim Sab have instituted O.S.No.1061/2011 before the Hon'ble Prl. Civil Judge (Jr.Div.,) Bangalore Rural District, Bangalore, seeking cancellation Sale Deed dtd: 16.6.1962, 13.3.1967, 19.12.1967, Mortgage Deed dtd: 2.6.1969, Sale Deeds dtd: 13.3.1970, 16.8.1988, 16.8.1988, 23.4.2004, 14.2.2008 and consequently to declare that the Plaintiffs of that 34 OS.No.16751/2002 suit are the absolute owners of the Schedule Property and consequently to direct the 1st Defendant to quit and deliver vacant possession of the Schedule Property in favour of the Plaintiffs of that suit and also claim for permanent injunction restraining the Defendants of that suit from interfering with the peaceful possession of the Plaintiffs over the Suit Schedule Property. The said suit was filed in respect of the entire portion of the land comprised in Sy.No.69 measuring 7 acres 5 guntas and the said suit is pending for adjudication. The Plaintiffs in the above suit are not the parties to OS.No.1061/2011 and the Plaintiffs in OS.No.1061/2011 are not parties to the present suit. Hence, the suit is liable to be dismissed for misjoinder of parties.
27. Further denied all the plaint allegations specifically and prayed for dismiss the suit.
28. The written statement filed by Defendant No.8 is adopted by Defendant No.7, 9, 10 and 11 by filing memo dtd:
17.9.2018.
29. On the basis of above pleadings following issues have been framed. Issue No.1 to 12 framed on 12.1.2018, Additional 35 OS.No.16751/2002 Issues framed on 4.9.2018, Issues framed on 9.9.2010 and 29.5.2013 are not considered, as those issues are covered in the issues framed on 12.1.2018 and 4.9.2018.
ISSUES dtd: 12.1.2018
1) Whether the Plaintiffs prove that they are the legal heirs of Late Pyarusab and have succeeded to the Plaint Schedule Property and are the absolute owners of the Plaint Schedule Property?
2) Whether the Plaintiffs further prove that Smt. Fathima Bi was not the widow of Late Pyarusab and she had no right to execute the registered Sale Deed dtd: 13.3.1970 in favour of Ahmed Hussain Saheb?
3) Whether the Plaintiffs further prove that the Sale Deed dtd: 16.8.1988 executed by Ahmed Hussain Saheb in favour of B.Kannaiah Naidu is not binding on them?
4) Whether the Plaintiffs further prove that the Sale Deed dtd: 23.4.2004 executed by Defendant No.5 in favour of the Defendant No.7 in respect of the Plaint Schedule 36 OS.No.16751/2002 Property is not binding on them?
5) Whether the Plaintiffs further prove that the Sale Deed dtd: 14.2.2008 executed by the 7th Defendant in favour of the 6 th Defendant is not binding on the Plaintiffs?
6) Whether the Plaintiffs further prove that they are in possession and enjoyment of the Plaint Schedule Property?
7) Whether the Plaintiffs further prove that the Defendants are trying to interfere with their possession over the Plaint Schedule Property?
8) Whether the Defendant No.6 proves that the Suit of the Plaintiffs is barred by limitation?
9) Whether the Defendant No.6 further proves that the valuation of the suit by the Plaintiffs for the purpose of Court Fee is not correct?
10) Whether the Plaintiffs/Defendants further prove that the suit is bad for non-joinder of necessary parties?
37 OS.No.16751/2002
11) Whether the Defendant No.6 proves that he is the bonafide purchaser of the Plaint Schedule Property under the Sale Deed dtd: 14.2.2008 and is the absolute owner of the Plaint Schedule Property by virtue of the said Sale Deed?
12) Whether the Plaintiffs are entitled for the reliefs prayed?
13) What order or decree?
Additional Issue dtd: 4.9.2018
1) Whether the Plaintiffs prove that the Sale Deed dtd: 14.3.1997 in favour of Ahamad Hussain is not binding on the Plaintiffs?
30. My findings to the above issues are as follows:
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Issue No.4 : In the Affirmative.
Issue No.5 : In the Affirmative.
Issue No.6 : In the Affirmative.
Issue No.7 : In the Affirmative.38 OS.No.16751/2002
Issue No.8 : In the Affirmative.
Issue No.9 : In the Affirmative.
Issue No.10 : In the Negative.
Issue No.11 : In the Negative.
Issue No.12 : In the Affirmative.
Addl.Issue No.1 : Deleted.
Issue No.13 : As per final order for the following:
REASONS
31. Issue No.1 and 2:- Both the issues are inter-related and hence answered in common in order to avoid the repetition of facts.
32. The sum and substance in the present case, the case of the Plaintiff is that they are the children of Late Syed Pyaru Sab and Syedani Bi. Late Pyaru Sab died in the year 1969 and after his death the Plaintiffs have become the absolute owner and owner of the Suit Schedule Property. Late Fathima Bi @ Gorima was not the wife of Syed Pyaru Sab and she has no authority to sell the Suit Schedule Property. Therefore, the Sale 39 OS.No.16751/2002 Deed dtd: 13.3.1970 executed by Fathima Bi in favour of Ahmed Hussain and all subsequent Sale Deeds are null and void and not binding on the Plaintiffs.
33. In the present case, the specific case of the Plaintiffs that they are the legal heirs of the deceased Pyaru Sab and died on 2.6.1969. As already stated above, initially the suit was filed by the Plaintiffs only against Defendant No.1 to 5, the same was decreed by this Court on 13.9.2013.
34. Initially Defendant No.1 to 3 remained ex-parte, Defendant No.4 and 5 filed the written statement, but not contested the suit. The Defendant No.5 challenged the said Judgment and Decree in RFA No.1681/2013 on the file of Hon'ble High Court of Karnataka and during the pendency of the said Appeal Defendant No.6 got impleaded in the said Appeal and thereafter the matter was remanded to this Court for retrial.
35. After remand, during the course of trial Defendant No.6 to 11 have impleaded in the present case and Defendant No.12 got impleaded herself in the present suit. The Defendant No.12 Smt.Gulab appeared in the present case and filed application to 40 OS.No.16751/2002 implead herself as daughter of Pyaru Sab and she was aged 51 years. Along with the application she has filed her T.C wherein her date of birth is shown as 10.4.1974. Admittedly, Pyaru Sab died on 2.6.1969 and hence the Defendant No.12 who born in the year 1974 cannot claim that she is the legal heir of deceased Pyaru Sab. Subsequently, Defendant No.12 has also not contested the present suit and also she has not filed written statement in the present case. Under these circumstances, Defendant No.12 cannot be considered as the legal heir of deceased Pyaru Sab. The Plaintiffs are contending that deceased Plaintiff No.1 and Plaintiff No.2 are the only legal heirs of deceased Pyaru Sab. During the course of trial Plaintiff No.1 died and his LRs were brought on record as Plaintiff No.1(a) to
(d). In order to prove that Plaintiffs are the only legal heirs of deceased Pyaru Sab, the Plaintiffs have produced Genealogical Tree as per Ex.P.9. Mutation Register Extract as per Ex.P.7, in order to show that one Bibijan was the wife of Late Syed Pyaru Sab. They have produced death certificate of Riyaz i.e., Plaintiff No.1 as per Ex.P.10 to show that Syed Pyaru Sab died on 2.9.1969. They have produced death certificate of Syed Pyaru 41 OS.No.16751/2002 Sab as per Ex.P.11. They have produced passport of Samiulla i.e., Plaintiff No.2 as per Ex.P.23. Adhaar Card and Identity Card issued by Election Commission of India as per Ex.P.24 and Ex.P.25. The Plaintiffs also in order to prove Ex.P.9 the Genealogical Tree, have examined the attesting witnesses of Ex.P.9 as PW.2 and also examined PW.3 who is the relative of the Plaintiff i.e., the PW.3 is the son of brother of Late Syed Pyaru Sab by name Syed Bada Sab. The Plaintiffs have made sufficient attempts to show that they are the legal heirs of the deceased Pyaru Sab. On the other hand, the Defendants except denying that the Plaintiffs are the legal heirs of Pyaru Sab, have not produced any contrary evidence to prove that as to who are the parents of deceased Plaintiff No.1 and Plaintiff No.2. Mere denying without producing any evidence in that regard, the contention of the Defendants that the Plaintiffs are not the legal heirs of the deceased Pyaru Sab cannot be accepted. The Advocate for Defendants have argued much about the discrepancy in the evidence of PW.2 and PW.3, but the fact remains that the PW.2. is the attesting witness to the Ex.P.9 and PW.3 has to be considered as the relative of the Plaintiffs i.e., 42 OS.No.16751/2002 the son of brother of deceased Pyaru Sab by name Syed Bada Sab. To disprove the said contention the Defendants have not produced any evidence in the present case. Considering the documentary evidence produced by the Plaintiffs and the oral evidence of PW.2 and PW.3, this Court is of the view that the Plaintiffs have proved that they are the legal heirs of the deceased Pyaru Sab and Pyaru Sab was having wife by name Bibijan.
36. The further contention of the Plaintiffs is that Fathima Bi @ Gorima is no way concern to the family of the Plaintiffs and the Pyaru Sab. The Fathima Bi is the stranger to the family of the Plaintiffs. There is no relation of any kind between the Pyaru Sab and Fathima Bi @ Gorima. The Plaintiffs have also contended that Pyaru Sab has never mortgaged the property. After the death of Pyaru Sab the said Fathima Bi @ Gorima claiming herself as the wife of Pyaru Sab has got executed the Sale Deed in respect of the Suit Schedule Property in favour of Ahmed Hussain @ Ranu Sab for Rs.500/-. It is pertinent to note that after the death of Pyaru Sab, the khatha was not changed in the name of Fathima Bi in respect of the Suit Schedule 43 OS.No.16751/2002 Property. If at all Fathima Bi is the only legal heir of Pyaru Sab as contended by the Defendants in the present case, the khatha in respect of the Suit Schedule Property should have been changed in the name of Fathima Bi. The alleged mortgage alleged to have been executed by Pyaru Sab during his lifetime in favour of Ahmed Hussain @ Ranu Sab is dtd: 2.6.1969. The Plaintiffs have contended that Pyaru Sab died on 2.6.1969 in the morning. If the Pyaru Sab died on 2.6.1969 in the morning itself, there is no chance to execute Mortgage Deed alleged to have been executed by deceased Pyaru Sab on 2.6.1969. In the Sale Deed alleged to have been executed by Fathima Bi @ Gorima as per Ex.P.3, it is stated that she is executing Sale Deed in order to maintain her daughter. But, in the present case, the Defendants are claiming that Fathima Bi is the only legal heir of deceased Pyaru Sab. As already stated above, the Defendant No.12 who was claiming herself as the daughter of deceased Pyaru Sab has not appeared in the present case and contested the matter to prove that she is the legal heir of deceased Pyaru Sab. As already stated above, as per the documents produced by herself, her date of birth is 10.4.1974 and Pyaru Sab died in the 44 OS.No.16751/2002 year 1969. As already stated above, after the death of Pyaru Sab, khatha was not changed in the name of Fathima Bi, as the legal heir of deceased Pyaru Sab as claimed by the Defendants in the present case. No evidence is produced by the Defendants to show that after the death of Pyaru Sab, the khatha was changed in the name of Fathima Bi. It is admitted fact that the Suit Schedule Property was purchased by deceased Pyaru Sab, under the registered Sale Deed dtd: 13.3.1967 as per Ex.P.1. It is also undisputed fact in the present case, the total extent of Sy.No.69 of Doddatoguru Village is measuring 7 Acres 8 Guntas. According to Plaintiffs, the Suit Schedule Property bearing Sy.No.69/1, the same is mentioned in the Sale Deed of Pyaru Sab as per Ex.P.1 that the Pyaru Sab has purchased the Sy.No.69/1 which is the Eastern side of 2 Acres 20 guntas of Sy.No.69/1. The Sale Deed executed by Fathima Bi @ Gorima as per Ex.P.3 is in respect of Sy.69/1 measuring 2 Acres 20 Guntas. The Defendants are claiming that they have purchased Sy.No.69. The Defendants have not produced any evidence to show that after the death of Pyaru Sab, the khatha was changed in the name of Fathima Bi in respect of the Suit Schedule 45 OS.No.16751/2002 Property. There is no evidence produced by the Defendants to show that Late Fathima Bi @ Gorima was the widow of Late Pyaru Sab. In the absence of any evidence produced by the Defendants and also in view of the evidence produced by the Plaintiffs in the present case, it has to be accepted that Smt. Fathima Bi was not the widow of Pyaru Sab, but one Bibijan was the widow of Late Pyaru Sab. When the Fathima Bi was not the widow of Pyaru Sab, she has no right to execute the Sale Deed in favour of Ahmed Hussain in respect of the Suit Schedule Property on 13.3.1970. Admittedly, Pyaru Sab died on 2.6.1969 and the alleged mortgage is also dtd: 2.6.1969 as stated above, the Defendants have failed to prove that Pyaru Sab executed the Mortgage Deed in favour of Ahmed Hussain @ Ranu Sab. As already stated above, Fathima Bi has executed the Sale Deed in favour of Ahmed Hussain on 13.3.1970, wherein she is claimed that she is selling the Suit Schedule Property to maintain her daughter. But, as per the Defendants, the Fathima Bi @ Gorima is the widow and only legal heir of deceased Pyaru Sab. It is well settled principle of law, that a person cannot transfer better title than what he has at the time of execution of Sale Deed. In the 46 OS.No.16751/2002 absence of any evidence to show that as on the date of Sale Deed alleged to have been executed by Fathima Bi claiming herself as wife of Late Pyaru Sab on 13.3.1970, it cannot be considered that she was the lawful owner of the Suit Schedule Property as on the date of Sale Deed. The Khatha in respect of the Suit Schedule Property was also not standing in the name of Fathima Bi @ Gorima as on that day. Under these circumstances, on the basis of the Sale Deed dtd: 13.3.1970, it cannot be said that the Fathima Bi @ Goriuma has transferred lawful title in respect of the Suit Schedule Property in favour of Ahmed Hussain as claimed by the Defendants in the present case. In view of the above discussion, this Court is of the view that the Plaintiffs have proved that they are the only legal heirs of Late Pyaru Sab and they have succeeded to the Suit Schedule Property after the death of Pyaru Sab. The Sale Deed executed by Fathima Bi claiming to be the wife of Late Pyaru Sab in favour of Ahmed Hussain on 13.3.1970 is illegal and not binding upon the Plaintiffs.
37. Apart from this, Defendant No.6 to 11 are claiming title over the property through Defendant No.1 to 3 and Defendant 47 OS.No.16751/2002 No.5. In the present case, Defendant No.1 to 3 remained ex- parte and Defendant No.5 has not led any evidence, though she has filed written statement in the present case. Under these circumstances, unless the vendor of the Defendant No.6 to 11 have been examined to prove that Fathima Bi @ Gorima was having right over the Suit Schedule Property as on the date of execution of Sale Deed in favour of Hussain Sab their contention cannot be accepted. In the present case, no such evidence is produced by the Defendant No.1 to 3 and Defendant No.5. The Defendant No.6 to 11 have also not examined their vendors to prove the same fact. In view of the above discussion, it is clear that the Plaintiffs have proved that they are the sole legal heirs of Late Pyaru Sab and have succeeded to the Suit Schedule Property as the absolute owner of the Suit Schedule Property. The Plaintiffs have also proved that Fathima Bi @ Gorima was not the widow of Late Pyaru Sab and had no right to execute the Sale Deed dtd: 13.3.1970 in favour of Ahmed Hussain Saheb. Hence, I answered Issue No.1 and 2 in the Affirmative.
38. Issue No.3:- The Defendant No.5 is claiming title over the property on the basis of the alleged Sale Deed executed by 48 OS.No.16751/2002 the husband of Defendant No.1 i.e., Late Ranu Sab @ Ahmed Hussain Saheb in favour of father of Defendant No.5 Kannaiah Naidu and Kannaiah Naidu has executed the unregistered Will in favour of the Defendant No.5 as per Ex.D.41. Though Defendant No.5 has taken several contentions in her written statement, Defendant No.5 has not produced any evidence to substantiate the contention taken by her in her written statement in the present case. Though sufficient opportunity was given to the Defendant No.5 to lead evidence, she has not led any evidence in support of her contention. On the contrary on 16.3.2019 the Advocate for Defendant No.5 has submitted that there is no evidence on behalf of Defendant No.5. Admittedly, Ex.D.41 is unregistered Will and not probated. Unless, the Defendant No.5 proves that Kannaiah Naidu has acquired title over the Suit Schedule Property and he has duly executed the Will as per Ex.D.41 in favour of the Defendant No.5, the Defendant No.5 is not entitled for any relief in the present case. The contention taken by the Defendant No.5 cannot be considered in the absence of any evidence produced by her in support of her contention. Ex.D.41 is not proved in accordance with Section 68 49 OS.No.16751/2002 of Evidence Act and Section 63 of Indian Succession Act. Hence, the Defendant No.5 failed to prove that Ahmad Hussain Saheb was having title over the Suit Schedule Property on the date of the Sale Deed executed by him on 6.8.1988 in favour of Kannaiah Naidu and the Defendant No.5 also failed to prove that Kanniah Naidu has executed Will as per Ex.D.41 in her favour. Under these circumstances, in the absence of any evidence produced by the Defendant No.5, only on the basis of the evidence of DW.1 and DW.2 who are the subsequent purchasers of the Suit Schedule Property, during pendency of the present suit, it cannot be said that Ahamad Hussain Saheb was having title over the Suit Schedule Property and Kannaiah Naidu has executed Will as per Ex.D.41 in favour of Defendant No.5. Hence, the alleged Sale Deed alleged to have been executed by Ahamad Hussain Saheb in favour of B. Kannaiah Naidu is not binding on the Plaintiffs. In view of the discussion made at the time of answering Issue No.1 and 2, it is clear that Plaintiffs are the only legal heirs of deceased Pyaru Sab and Fathima Bi @ Gorima was not the widow of Late Pyaru Sab and the said Fathima Bi @ Gorima was not having any right to executed Sale 50 OS.No.16751/2002 Deed in favour of Ahamad Hussain Saheb in respect of the Suit Schedule Property and Defendant No.5 cannot claim any right over the Suit Schedule Property on the basis of Ex.D.41. As already stated Ex.D.41 is also not proved in accordance with law by the Defendant No.5 in the present case. Hence, I answer Issue No.3 in the Affirmative.
39. Issue No.4, 5 and 11:- The Plaintiffs have contended that the Sale Deed executed by Defendant No.5 in favour of Defendant No.7 on 23.4.2004 in respect of the Suit Schedule Property is not binding on them. They also claiming that the Sale Deed executed by Defendant No.7 on 14.2.2008in favour of the Defendant No.6 is also not binding on the Plaintiffs. The Defendant No.6 has contended that he is the bonafide purchaser of the Suit Schedule Property under the Sale Deed dtd: 14.2.2008 and he is the absolute owner of the Suit Schedule Property by virtue of the said Sale Deed. The present suit was initially filed by Plaintiffs against the Defendant No.1 to
4. Subsequently, the Defendant No.5 got impleaded herself in the present suit. The Defendant No.4 has not claiming any title over the Suit Schedule Property. The Defendant No.5 was 51 OS.No.16751/2002 claiming title over the Suit Schedule Property through her father under the alleged Will alleged to have been executed by her father in her favour as per Ex.D.41. But, the Defendant No.4 and 5 have not led any evidence and Defendant No.1 to 3 remained ex-parte and hence, the suit was decreed by this Court on 13.9.2013. Thereafter, Defendant No.5 approached the Hon'ble High Court of Karnataka by filing RFA No.1681/2013 on the ground that opportunity was not given to her to lead evidence and in the Hon'ble High Court of Karnataka the Defendant No.6 got impleaded and the matter was remanded by the Hon'ble High Court of Karnataka by order dtd: 24.8.2015. Even after remand Defendant No.6 got examined its Representative as DW.1 and Defendant No.8 got examined its Partner as DW.2 and Defendant No.5 even after remand has not led any evidence in order to substantiate the contention taken in the written statement filed by her in the present case. Admittedly, the Sale Deed alleged to have been executed by the Defendant No.5 in favour of Defendant No.7 is during the pendency of the present suit and hence, the said Sale Deed is hit by the principles of lis- pendency as contemplated under Section 52 of Transfer of 52 OS.No.16751/2002 Property Act. The Defendant No.7 will not get any kind of right over the Suit Schedule Property, unless the Defendant No.5 proves her title over the Suit Schedule Property on the basis of the alleged Will as per Ex.D.41 and the alleged Sale Deed alleged to have been executed by Ahamad Hussain Saheb in favour of father of Defendant No.5 on 16.8.1988. In the present case, since the Defendant No.5 has not led any evidence, it is clear that the Defendant No.5 has failed to prove the title of her father over the Suit Schedule Property on the basis of the Sale Deed dtd: 6.8.1988 and also failed to prove that she acquired title over the Suit Schedule Property on the basis of the Will alleged to have been executed by her father as per Ex.D.41. The Defendant No.7 in turn executed Sale Deed dtd: 14.2.2008 in favour of the 6th Defendant during the pendency of the present suit. The said Sale Deed is also hit by the principles of lis- pendency and unless the Defendant No.1 to 5 proved their title over the Suit Schedule Property the Defendant No.6 and 7 cannot claim any kind of right over the Suit Schedule Property. It is also pertinent to note that the Defendant No.4 was impleaded in the present case since from the date of present suit. The 53 OS.No.16751/2002 Defendant No.4 has filed his written statement as per Ex.P.26 and has not claimed any title over the Suit Schedule Property, but he is aware that the litigation is pending between the Plaintiffs and the Defendant No.1 to 5 in respect of the Suit Schedule Property. The Defendant No.4 has not produced any oral or documentary evidence prior to remand or even after remand by the Hon'ble High Court of Karnataka in RFA No.1681/2013 filed by Defendant No.5. Since, the Defendant No.4 was aware of pending litigation, he cannot be said that the Defendant No.6 is the bonafide purchaser of the Suit Schedule Property. Since, the DW.1 is the original Defendant No.4 got examined himself as the authorized signatory of the Defendant No.6, the Defendant No.6 and 7 being the purchaser of the Suit Schedule Property during the pendency of the present suit, they cannot claim that they are the bonafide purchaser of the Suit Schedule Property. It is true, only because litigation is pending, there is no bar to execute Sale Deed in respect of the disputed property involved in the litigation. However, the right of the purchaser is subject to the result of the suit. Only if the Defendant No.1 to 5 proves their title over the Suit Schedule 54 OS.No.16751/2002 Property on the basis of the alleged Sale Deed in their respective name, the Defendant No.6 and 7 cannot claim any kind of right over the Suit Schedule Property. DW.1 during the cross-examination denied that he is the Defendant No.4 in the present case, but on comparing his signature on the vakalath and the written statement filed by him, it is clear that DW.1 is the Defendant No.4 in the present case. The signature of DW.1 on his vakalath and written statement are marked as Ex.P.26(a) and Ex.P.27(a) in the present case. Further it is clear that as on the date of Sale Deed in favour of Defendant No.7 and also on the date of Sale Deed in favour of Defendant No.6, DW.1 is aware about the litigation pending between the Plaintiffs and the Defendant No.1 to 5 in respect of the Suit Schedule Property. The Defendant No.6, 7 to 11 have taken several contentions in their written statement and also produced several documents in support of their case, but in view of the fact that the Defendant No.6, 7 to 11 are the purchaser of the property during the pendency of the litigation and the Defendant No.1 to 5 failed to prove their title over the Suit Schedule Property to execute the Sale Deed in favour of Defendant No.6 and 7, it cannot be said 55 OS.No.16751/2002 that the said Sale Deeds are binding on the Plaintiffs. In view of the discussion made at the time of answering Issue No.1 to 3 and also in view of the discussion made above, it is clear that the Sale Deed executed by Defendant No.5 in favour of Defendant No.7 on 23.4.2004 and the Sale Deed executed by Defendant No.7 in favour of Defendant No.6 on 14.2.2008 is not binding upon the Plaintiffs title over the Suit Schedule Property. The Defendant No.6 was aware of the pending litigation as stated above, as the DW.1 was originally the Defendant No.4 in the present case and he is not claiming any right over the Suit Schedule Property and he got examined as DW.1 on behalf of Defendant No.6 in the present case. Hence, the Defendant No.6 cannot claim that he is the bonafide purchaser of the Suit Schedule Property under the Sale Deed dtd: 14.2.2008. Apart from this, in the present case, the Defendant No.7 to 11 have not filed any written statement. They have adopted the written statement filed by Defendant No.6. Even during the course of evidence, the contention taken by DW.2 is similar to the contentions taken by DW.1. Even the documents got marked by the DW.2 are the certified copies of the documents produced by 56 OS.No.16751/2002 DW.1 in the present case. Under these circumstances, it is clear that Defendant No.7 has not produced any new evidence, apart from the evidence produced by DW.1 in the present case. In view of the above discussion, I answer Issue No.4 and 5 in the Affirmative and Issue No.11 in the Negative.
40. Issue No.10:- Issue No.10 was examined as under:
"Whether the Plaintiffs further prove that the suit is bad for non-joinder of necessary parties?"
According to me, there is a typographical mistake, the same should have been:
"Whether the Defendants prove that the suit is bad for non-joinder of necessary parties?"
and hence, Issue No.10 is corrected accordingly. In the present case, the Defendants are contending that the suit of the Plaintiffs is bad for non-joinder of necessary parties, on the ground that Fathima Bi or his legal heirs have not been impleaded in the present case and hence the suit is not maintainable. The case of the Plaintiffs is that Fathima Bi @ 57 OS.No.16751/2002 Gorima is a stranger and they don't know anything about the said Fathima Bi @ Gorima and the Defendants are claiming that Fathima Bi @ Gorima is the only legal heir of deceased Pyaru Sab. Under these circumstances, it is for the Defendants to prove that Fathima Bi @ Gorima was the wife of Pyaru Sab and she succeeded to the Suit Schedule Property. In view of the discussion made above, it is clear that the Defendants have failed to prove the said fact. The Defendants would have examined any of the legal heir of the Fathima Bi in the present case to prove that Fathima Bi @ Gorima was the widow of the deceased Pyaru Sab. But, no such effort is made by the Defendants in the present case. It is well settled principle of law that the one who assert the existence of fact must prove the same. In the present case, the Defendants are claiming that Fathima Bi @ Gorima was the wife of Pyaru Sab and hence it is for them to prove the said fact. In that regard, the Defendants have not produced any evidence in the present case. The Defendants are claiming that Fathima Bi @ Gorima is the only legal heir of deceased Pyaru Sab. However, in the Sale Deed alleged to have been executed by Fathima Bi in favour of 58 OS.No.16751/2002 Ahamad Hussain Sab it was mentioned that Fathima Bi @ Gorima was selling the said Suit Schedule Property for maintenance of her daughter. The Defendants have not produced any evidence to show that Fathima Bi @ Gorima was alone the legal heir of Late Pyaru Sab and in view of the recital in the Sale Deed executed by Fathima Bi in favour of Ahamad Hussain Sab the contention of the Defendants that Fathima Bi was the widow of Late Pyaru Sab cannot be accepted. In the absence of any evidence produced by the Defendants to prove the existence of Fathima Bi @ Gorima and her relationship with Pyaru Sab, the contention of the Defendants that the suit is bad for non-joinder of necessary parties cannot be accepted. Hence, I answer Issue No.10 in the Negative.
41. Issue No.6 & 7:- Both the issues are inter-related and hence answered in common in order to avoid the repetition of facts.
42. Initially when the suit was filed by the Plaintiff, he has contended in Para No.7 that the cause of action arose for the suit on 21.9.1998 when the Plaintiff went to the Suit Schedule Property to demand the possession and on subsequent dates 59 OS.No.16751/2002 thereto within the jurisdiction of this Court. Subsequently, the suit pleadings was amended as per the order of this Court and Para No.7 was substituted contending that the cause of action for the suit arose on 21.9.1998 when the Plaintiff went to the Suit Schedule Property, on 13.7.2015 when the Plaintiff for the first time learn about the alleged transaction of sale in respect of the Suit Schedule Property amongst the Defendant No.5 to 11 intersay and on subsequent dates thereto within the jurisdiction of this Court. The order of amendment remained unchallenged. Admittedly, the Suit Schedule Property is a vacant land and hence, there cannot be a physical possession of the Suit Schedule Property. Only, the person who is having title over the property is having constructive possession of vacant land. Since, the Suit Schedule Property is vacant land and in view of the discussion made above, the Plaintiffs have proved that they are the owners and in possession of the Suit Schedule Property as on the date of filing of the present suit, the contention of the Defendants that as on the date of suit the Plaintiffs are not in possession of the Suit Schedule Property is not accepted. As already stated above, except the Defendant No.6 and 7, no 60 OS.No.16751/2002 other Defendants have produced any evidence in the present case. The Defendant No.6 and 7 are the purchasers of the Suit Schedule Property during the pendency of the suit and their right over the Suit Schedule Property depend upon the result of the present suit. The Defendant No.6 and 7 are claiming right over the Suit Schedule Property through Defendant No.1 to 5. But, the Defendant No.1 to 5 have not produced any evidence in the present case. Though the Defendant No.5 has filed written statement has not produced any evidence in the present suit and Defendant No.1 to 3 remained ex-parte and Defendant No.4 has filed written statement, but not led any evidence. Under these circumstances, it has to be considered that as on the date of suit Plaintiffs were in possession of the Suit Schedule Property. The Defendants are denying the Plaintiffs title over the Suit Schedule Property, that itself is sufficient to hold that Defendants are interfering with the Plaintiffs possession over the Suit Schedule Property. The Defendants are claiming that they are in possession of the Suit Schedule Property, but failed to prove their possession over the Suit Schedule Property, in view of the discussion made above. Hence, I answer Issue No.6 and 7 61 OS.No.16751/2002 in the Affirmative.
43. Issue No.8 & 9:- Both the issues are inter-related and hence answered in common in order to avoid the repetition of facts.
44. The Defendant No.6 contending that the suit of the Plaintiff is barred by limitation on the ground that Plaintiff is challenging the Sale Deed dtd: 13.3.1970, 18.8.1988, 23.4.2004 and 14.2.2008 in the present case. As already discussed above, the Plaintiffs were not aware of the Sale Deed executed by Fathima Bi @ Gorima in favour of Ahamad Hussain Sab on 13.3.1970 and the Plaintiffs were also not aware of the Sale Deed executed by Defendant No.1 to 3 in favour of the father of the Defendant No.5 Kannaiah Naidu on 18.8.1988. The Plaintiffs were also not aware about the alleged unregistered Will executed by Kannaiah Naidu in favour of Defendant No.5 as per Ex.D.41. The Defendants have not produced any evidence to show that on the basis of the Sale Deed dtd: 13.3.1970, 18.8.1988 the khatha was changed either in the name of Ahamad Hussain Sab or in the name of Kannaiah Naidu, only on the basis of the alleged unregistered Will the khatha was 62 OS.No.16751/2002 changed in the name of Defendant No.5. Under these circumstances, there is no chance for the Plaintiffs to know about the Sale Deed alleged to have been executed by Fathima Bi @ Gorima in favour of Ahamad Hussain Sab and Ahamad Hussain Sab in favour of Kannaiah Naidu. As far as the Sale Deed dtd: 23.4.2004 and 14.2.2008 is concerned, they are the Sale Deeds executed during the pendency of the suit and Plaintiffs need not challenge the said Sale Deeds in the present suit. The Plaintiffs have contended that only during the pendency of RFA No.1681/2013 filed by the Defendant No.5 before the Hon'ble High Court of Karnataka and Defendant No.6 appeared in the said RFA and Plaintiffs came to know about the Sale Deed between the Defendant No.5 to 11 intersay. In order to prove the contention, no evidence is produced by the Defendants in the present case to show that prior to that Plaintiffs were aware about the Sale Deeds executed by Fathima Bi @ Gorima in favour of Ahamad Hussain Sab and Defendant No.1 to 3 in favour of Kannaiah Naidu on 13.3.1970 and 18.8.1988 respectively. Under these circumstances, the Plaintiffs after the matter was remanded impleaded Defendant No.7 to 11 63 OS.No.16751/2002 and continued the present suit and hence, the suit is filed within three years from the date of knowledge of the alleged Sale Deed between Fathima Bi @ Gorima and Ahamad Hussain Sab and Kannaiah Naidu. As per Article 58 of Limitation Act in a suit for declaration the period of limitation is three years when the right to sue accrues. In the present case, as discussed above, Plaintiffs came to know about the Sale Deed dtd: 13.3.1970 and 18.8.1988 only before the Hon'ble High Court during the pendency of RFA No.1681/2013. Subsequently, the Plaintiffs got amended the plaint and included pleadings in respect of those Sale Deeds in the present case and hence the contention of the Plaintiffs that the suit of the Plaintiffs is barred by limitation cannot be accepted.
45. The Defendant No.6 further contended that the valuation of the suit made by the Plaintiff for the purpose of court fee is not correct. In the present case, the Plaintiffs have valued the suit for Rs.40,00,000/- and paid court fee of Rs.1,29,625/-. Subsequent to amendment, the Plaintiffs have paid court fee by filing the suit for Rs.1,000/- for the other reliefs. The Defendants have not produced any evidence or 64 OS.No.16751/2002 brought on record anything against the contention of the Plaintiffs that the value of the suit is more than Rs.40,00,000/-. In the absence of any evidence produced by the Defendants, it cannot be said that the court fee paid by the Plaintiffs and the valuation made by the Plaintiff is not correct as contended by the Defendants in the present case. Hence, I answer Issue No.8 and 9 in the Affirmative.
46. Additional Issue No.1:- My predecessor in office has framed Additional Issue on 4.9.2018:
"Whether the Plaintiffs prove that Sale Deed dtd: 14.3.1997 in favour of Ahamad Hussain is not binding on the Plaintiffs?"
47. In the present case, it is not the case of the Plaintiffs that the Sale Deed is not executed in favour of Ahamad Hussain. It is not the case of the Plaintiffs that he has challenged the Sale Deed dtd: 14.3.1997. I do not know on what ground the additional issue was framed in the present case. However, considering that the said additional issue was framed by mistake by the Predecessor in office of this Court. This Court is 65 OS.No.16751/2002 of the view that the said Additional Issue has to be deleted as not necessary. Hence, Additional Issue No.1 is deleted.
48. Issue No.12:- In view of the discussion made above, it is clear that the Plaintiffs have proved that they are the legal heirs of deceased Pyaru Sab and they have succeeded to the Suit Schedule Property as absolute owners, after the death of Pyaru Sab on 2.6.1969. The Plaintiffs have also proved that Fathima Bi @ Gorima was not the widow of Pyaru Sab and she has no right to execute the Sale Deed dtd: 13.3.1970 in favour of Ahamad Hussain Sab. The Plaintiffs have also proved that the Sale Deed dtd: 16.8.1988 executed by Ahamad Hussain Sab in favour of Kannaiah Naidu is also not binding on the Plaintiffs. The Defendant No.6 to 11 are the subsequent purchasers of the Suit Schedule Property during the pendency of the present suit and the said Sale Deeds are not binding upon the Plaintiffs and hence, this Court is of the view that the Plaintiffs are entitled for the reliefs prayed in the suit.
49. The Advocate for Plaintiff has relied on the following decisions:
66 OS.No.16751/2002
(i) AIR 2009 Uttarakhand 5 between Smt. Neelam Kumari and Anr., V/.s U.P. Financial Corporation.
(ii) (2018) 8 SCC 67 between Eureka Builders and Others V/s Gulabchand S/o Veijee Dand Since Deceased by Legal Representatives and Others.
(iii) AIR 2019 SCC 4252 between Madhukar Nivrutti Jagtap and Ors., V/s Smt. Pramilabai Chandulal Parandekar (Dead) Thr.
Lrs and Ors.
50. The Advocate for Defendant No.5 has relied on the following decisions:
(i) (2008) 4 SCC 594 between Anathula Sudhakar V/s P. Buchi Reddy (Dead) by LRS and Others.
(ii) ILR 2007 KAR 339 between Sri. Aralappa V/ Sri. Jagannath and Others.
51. The Advocate for Defendant No.6 has relied on the following decisions:
(i) (2007) 14 SCC 253 between Meharchand Das V/s Lal Babu Siddique and Others.67 OS.No.16751/2002
(ii) (2017) 3 SCC 702 between Executive Officer, Arulmigu Chopkkanatha Swamy Koil Trust, Virudhunagar V/s Chandran and Others.
(iii)(2008) 4 SCC 594 between Anathula Sudhakar V/s P. Buchi Reddy (Dead) by LRS and Others.
52. The Advocate for Defendant No.7 to 11 has relied on the following decisions:
(i) 1971 (2) SCC 860 between M/s Bharat Barrel And Drum MFG., Co., Ltd., and Another V/s The Employees State Insurance Corporation.
(ii) (2016) 1 SCC 332 between L.C. Hanumanthappa (Since Dead) Represented by his Legal Representatives V/s H.B. Shivakumar.
(iii) (1996) 5 SCC 493 between Maqbool Fatma (Smt) and Other V/s Deputy Custodian General Evacuee Property and Another.
(iv) (1997) 7 SCC 556 between P.K. Ramachandran V/s State of Kerala and Another.
I have gone through all the decisions. Hence, I answer 68 OS.No.16751/2002 Issue No.12 in the Affirmative.
53. Issue No.13 :- In view of the discussion made above, I proceeds to pass the following :-
ORDER The suit of the Plaintiffs is decreed with costs. It is hereby declared that the Sale Deed obtained by the Defendants in respect of the Suit Schedule Property intersay between them dtd: 13.3.1970 executed by Fathima Bi @ Gorima in favour of Ahamad Hussain Sab and Sale Deed dtd: 16.8.1988 executed by Ahamad Hussain Sab in favour of Kannaiah Naidu are not binding on the Plaintiffs.
It is also declared that the Sale Deeds dtd: 23.4.2004 and 16.2.2008 in favour of Defendant No.6 and 7 are also not binding upon the Plaintiffs as the same are hit by the principles of lis-pendency.
The Defendants or anybody on their behalf are hereby restrained by permanent injunction from interfering with the Plaintiffs peaceful possession and enjoyment of the Suit 69 OS.No.16751/2002 Schedule Property.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 10th day of August 2020].
[Krishnaji Baburao Patil], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
SCHEDULE PROPERTY All that piece and parcel of the property bearing survey No.69/1, new No.154, situated at Doddathoguru Village, Begur Hobli, Bangalore South Taluk, measuring 2-20 guntas bounded on the:
East by : Kappanna's land.
West by : Survey No.70.
North by : B.N. Bayanna land.
South by : Shikaripalya border.
70 OS.No.16751/2002
ANNEXURE
1. List of witnesses examined for the plaintiffs:-
P.W.1 : Samulla.
P.W.2 : Sri. Nagesh.
P.W.3 : Syed Riyaz.
2. List of documents marked:-
Ex.P 1 : Sale Deed dtd: 13.3.1967.
Ex.P 2 : Index of Land.
Ex.P 3 : Certified copy of Sale Deed
dtd:13.3.1970.
Ex.P 4 : Certified copy of Encumbrance
Certificate.
Ex.P 5&6 : Phodi Sketch.
Ex.P 7 : Mutation Register Extract.
Ex.P 8 : Pahani copy.
Ex.P 9 : Genealogical Tree.
Ex.P 9(a) : Signatures of PW.1 and PW.2.
&
9(b)
Ex.P 10 : Death Certificate of Riyaz.
Ex.P 11 : Death Certificate of Pyaru Sab.
Ex.P 12 to : Certified copies of three Sale Deeds.
71 OS.No.16751/2002
14
Ex.P 15 : Tax paid receipt.
Ex.P 16 to : Three Encumbrance Certificates.
18
Ex.P 19 : Pahani patrike.
Ex.P 20 : Sheet containing two photographs.
Ex.P 21 : Sheet containing Photograph and
Negative.
Ex.P 22 : Tax paid receipt.
Ex.P 23 to : Passport, Adhaar Card, and Election
25 Identity Car.
Ex.P 26 : Copy of written statement in
OS.No.16751/2002.
Ex.P 27 : Vakalath in P.Misc.No.10193/198.
3. List of witnesses examined for the defendants:-
DW.1 : Manohar Naidu.
DW.2 : B.S. Mohan.
4. List of documents marked:-
Ex.D 1 : Certified copy of deposition of Samiulla
in P.Misc.No.10193/1998 &
OS.No.16751/02.
Ex.D 2 : Certified copy of deposition of Samiulla
in P.Misc.No.10193/1998 &
OS.No.16751/02.
72 OS.No.16751/2002
Ex.D 3 : Certified copy of deposition of Riyaz in
P.Misc.No.10193/1998 &
OS.No.16751/02.
Ex.D 4 : Certified copy of the order by Hon'ble
High Court in RFA No.1681/2013 dtd:
24.8.2015.
Ex.D 5 : Certified copy of Order sheet in RFA
No.1681/2013.
Ex.D 6 to : Certified copies of RTCs.
9
Ex.D 10 : RTCs from the year 2001-2002 to 2012-
to 2013.
21
Ex.D 22 : Certified copy of khatha in the name of
6th Defendant.
Ex.D 23 : Original Board Resolution dtd: 8.3.2019.
Ex.D 24 : Certified copy of the Mutation Extract in
the name of Kannaiah Naidu.
Ex.D 25 : Certified copy of the Mutation Extract in
the name of Kannaiah Naidu.
Ex.D 26 : Original mutation extract in the name of
Smt. M. Saraswathi/5th Defendant.
Ex.D 27 : Certified copy of conversion certificate
dtd: 4.7.2000.
Ex.D 28 : Certified copy of Public Notice issued in
Prajavani on 23.3.2019.
73 OS.No.16751/2002
Ex.D 29 : Certified copy of the khatha extract in the name of 7th Defendant.
Ex.D 30 : Copy of fresh certificate of incorporation consequent upon change of name from Lahari Technopolis Pvt., Ltd., to West One Electronic City Pvt., Ltd.
Ex.D 31 : Original Sale Deed dtd: 19.12.1967.
Ex.D 32 : Typed copy of Ex.D.31.
Ex.D 33 : Original Sale Deed dtd: 23.4.2004.
Ex.D 34 : Original Sale Deed dtd: 14.2.2008.
Ex.D 35 : Original registered Mortgage Deed dtd:2.6.1969.
Ex.D 36 : Certified copy of Sale Deed
dtd:16.6.1962.
Ex.D 37 : Certified copy of Sale Deed
dtd:13.3.1970.
Ex.D 38 : Certified copy of Sale Deed
dtd:16.8.1988.
Ex.D 39 : Certified copy of Sale Deed
dtd:16.8.1988.
Ex.D 40 : Certified copy of Sale Deed
dtd:13.3.1967.
Ex.D 41 : Will executed by Kannaiah Naidu in
favour of Defendant No.5.
Ex.D 42 : Board Resolution passed by Defendant No.8 Firm in favour of Mr. B.S. Mohan.
74 OS.No.16751/2002
Ex.D 43 : Certified copy of Sale Deed
dtd:16.6.1962 executed by Khasim Sab
in favour of Yusuff.
Ex.D 44 : Certified copy of the Sale Deed
dtd:13.3.1967 executed by Yusuff in
favour of Syed Pyaru.
Ex.D 45 : Certified copy of the Sale Deed
dtd:19.1.1967 executed by Khasim Sab
in favour of Ahmed Hussain and Abdul
Basheer.
Ex.D 45(a) : Typed copy.
Ex.D 46 : Certified copy of the Sale Deed
dtd:13.3.1970 executed by Smt.
Fathima Bi in favour of Ahmed Hussain.
Ex.D 47 : Certified copy of Will dtd: 10.5.1990
executed by P. Kannaiah Naidu in favour
of his wife and children.
Ex.D 48 : Certified copy of the Conversion Order.
Ex.D 49 : Certified copy of Sale Deed
dtd:6.8.1988 executed by Ahmed
Hussain in favour of Kannaiah Naidu.
Ex.D 50 : Certified copy of Sale Deed
dtd:16.8.1988 executed by Ahmed
Hussain in favour of Kannaiah Naidu.
Ex.D 51 : Certified copy of MR No.5/88-89.
Ex.D 52 : Certified copy of MR No.6/88-89.
Ex.D 53 : Certified copy of MR No.41/92-93.
Ex.D 54 : Certified copy of the Sale Deed
75 OS.No.16751/2002
dtd:23.4.2004 executed by Smt. M.
Saraswathi in favour of Defendant No.8.
Ex.D 55 : Certified copy of the Sale Deed
dtd:14.2.2008 executed by Defendant
No.8 in favour of M/s Lahari Technopolis
Pvt., Ltd.
Ex.D 56 : Certified copy of IA No.1 dtd: 14.9.2011 filed in OS.No.1061/2011 pending before III ACJ, Bengaluru Rural District, Bengaluru.
Ex.D 57 : Certified copy of IA No.2 dtd: 14.9.2011 filed in OS.No.1061/2011 pending before III ACJ, Bengaluru Rural District, Bengaluru.
Ex.D 58 : Certified copy of order sheet from 15.9.2011 to 21.6.2017 in OS.No.1061/2011 pending before III ACJ, Bengaluru Rural District, Bengaluru.
(Krishnaji Baburao Patil) XXVIII ADDL.CITY CIVIL JUDGE BANGALORE.
7 O.S.No.16712/20056 Judgment pronounced in open court vide separate judgment :-
ORDER The suit of the Plaintiffs is decreed with costs. It is hereby declared that the Sale Deed obtained by the Defendants in respect of the Suit Schedule Property intersay between them dtd: 13.3.1970 executed by Fathima Bi @ Gorima in favour of Ahamad Hussain Sab and Sale Deed dtd: 16.8.1988 executed by Ahamad Hussain Sab in favour of Kannaiah Naidu are not binding on the Plaintiffs.
It is also declared that the Sale Deeds dtd: 23.4.2004 and 16.2.2008 in favour of Defendant No.6 and 7 are also not binding upon the Plaintiffs as the same are hit by the principles of lis-pendency.
The Defendants or anybody on their behalf are hereby restrained by permanent injunction from interfering with the Plaintiffs peaceful possession and enjoyment of the Suit Schedule Property.
Draw decree accordingly.
(Krishnaji Baburao Patil) XXVIII ADDL.CITY CIVIL JUDGE BANGALORE.7 O.S.No.16712/2005
7