Bangalore District Court
Smt.Sunanda vs ) Sri Somashekhar on 21 January, 2022
KABC010192832012
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-26)
Dated this the 21st day of January, 2022
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.7157/2012
Plaintiff: Smt.Sunanda
w/o Basavaraju
aged about 41 years
r/at No.126, 4th Cross
Muneshwara Block
Mahalakshmi Layout Post
Bangalore-560 086.
(By Sri L. Prakash, Adv.)
Vs.
Defendants: 1) Sri Somashekhar
s/o Late Govindappa
aged about 35 years
r/at No.7/1, 1st Main
Nanjundeshwara Nagar
Nandini Layout
Bangalore-560 096.
2) Sri B. Bhanuprakash
s/o Late Govindappa
aged about 29 years
r/at No.323, 3rd Main
Vijayananda Nagar
Nandini Layout
Bangalore-560 096.
(By Sri P. Prasanna Kumar, Adv.)
2 O.S.No.7157/2012
Date of institution of the suit 03.10.2012
Nature of the suit For declaration,
recovery of possession
and permanent
injunction
Date of the commencement 08.01.2015
of recording of evidence
Date on which the judgment 21.01.2022
Pronounced
Total duration Years Months Days
11 03 18
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration, recovery of possession of suit schedule property and for consequential relief of permanent injunction.
2. The brief facts leading to the plaintiff's case are summarized as under:-
That the subject matter of the litigation is detailed in plaint schedule which is said to be an immovable property being the part and parcel of northern portion of vacant site bearing property No.11 formed in Sy.No.1 block No.56 of Jarakabandikaval village, Yeshwanthapura hobli, 3 O.S.No.7157/2012 Bengaluru North Taluk. The plaintiff claims to be the absolute owner of the suit schedule property. She has further stated that the land in Sy.No.1 shown in the schedule of the plaint was a Government gomal land and the Government of Mysore granted portions of the said land to about 43 persons. It is stated that one Smt.Venkatamma was the beneficiary who was granted an extent of 6 acres 5 guntas in block No.11, 15 and 56 in the suit survey number and was in possession of the said land in pursuance of the Govt. order dated 16.02.1969. It is further stated that she exercised her ownership over the land by alienating 50 guntas in the suit survey number in favour of one K.Shanmugam, K. Kadiravelu and K. Thangavelu jointly and put them in possession of the land by executing a registered sale deed dated 02.08.1980. The said purchasers subsequently said to have developed the land by forming sites and jointly sold site No.11 for a valuable consideration in favour of Smt.Lakshmamma and put her in possession of the said property by executing notarized GPA and affidavit confirming the sale of the said site and receipt of consideration amount on 10.01.1984. It has been further stated that later the said Lakshmamma 4 O.S.No.7157/2012 offered the suit site No.11 to the plaintiff and on verification of the title deeds and relevant documents the plaintiff agreed to purchase the said site directly from the land owners i.e., K. Thangavelu and Smt.Vijaya w/o Kadiravelu since two executants of GPA Shanmugam and Kadiravelu had at that time passed away on 09.09.1997 and 21.04.1985 respectively. It is stated that the said surviving GPA holder Thangavelu and wife of Kadiravelu Smt.Vijaya jointly said to have executed the registered sale deed in favour of the plaintiff on 26.09.2008 and put her in possession of the suit site. It is further stated that the son of Kadiravelu by name Ananda Kumar and GPA holder Lakshmamma have also signed the said registered sale deed as consenting witnesses. Thus the plaintiff claims to be the lawful and bonafide purchaser of the suit site from the original owners. However it is alleged that the defendants who are utter strangers to the suit schedule property having no right over the same, have been unnecessarily interfering with her possession over the suit schedule property claiming that they are the owners of suit site having purchased the same under a registered sale deed dated 29.07.2008 from its previous 5 O.S.No.7157/2012 owners Kadiravelu, Shanmugam and Thangavelu through their GPA holder Smt.Ramarathnamma. It is further stated that by alleging interference by this plaintiff, the defendants filed O.S.No.7591/2008 for the relief of permanent injunction in which the plaintiff appeared and filed written statement denying their claim and by reiterating the present plaint averments stating that she has acquired lawful title over the suit schedule property under the registered sale deed as stated above. It is further alleged that the alleged GPA holder Smt.Ramarathnamma had no right to represent the executants since two of them Kadiravelu and Shanmugam had died much prior to the date of execution of said sale deed dated 29.07.2008 in favour of the defendants and therefore the defendants have not derived any valid title over the suit schedule property. It is further contended by the present plaintiff in the said suit filed by the defendants that the present defendants had attempted to trespass into the suit schedule property and to interfere with her possession over the same for which she lodged police complaint and had seriously contested the said suit seeking for its dismissal and after recording evidence and 6 O.S.No.7157/2012 hearing arguments in the said case, the court decreed the suit of the present defendants granting them permanent injunction by restraining this plaintiff from interfering with their possession. However the plaintiff has specifically urged that though the said suit was decreed, but the court has made material observation in the operative portion of the judgment to the effect that the plaintiff herein shall not interfere with the possession of the defendants till they are evicted under due process of law and therefore by relying on the said observation the plaintiff in this case has specifically urged that the court even in that suit has clearly held that the present defendants have not acquired any valid title over the suit schedule property in view of the fact that the executant of the said sale deed of defendants i.e., the GPA holder Ramarathnamma had no right to execute the said sale deed since two of the executants of GPA had already died even prior to the said sale deed and therefore in view of such observation the plaintiff is entitled to file the present suit seeking the relief and ultimately she has urged that the defendants are liable to be evicted from the suit schedule property. It is further alleged that on the strength of the said decree 7 O.S.No.7157/2012 passed in O.S.No.7591/2008 the defendants are making hectic efforts to alienate the entire suit site including the suit schedule property in order to cause wrongful gain for them and the plaintiff has further stated that she has restricted her claim only to an extent of 30x16 feets which is vacant portion of site No.11 which she has purchased under the sale deed dated 26.09.2008 and hence the suit.
3. In pursuance of service of suit summons, the defendant Nos.1 & 2 entered their appearance through their counsel and filed written statement, denying the claim of the plaintiff. At the very outset they have disputed the title and possession of the plaintiff over the suit schedule property as claimed by her. They have however not denied the original ownership of the suit schedule property by Venkatamma Bovi as per the Govt. order and about her possession over the said property and they have also not denied the fact that she had alienated 50 guntas in the suit survey number to the above said K. Shanmugam and two others under the registered sale deed dated 02.08.980. However the defendants have denied the further averments of the plaint that the said Shanmugam and his two brothers subsequently developed 8 O.S.No.7157/2012 the land, formed sites and jointly sold suit site No.11 for valuable consideration to Smt.Lakshmamma under the unauthorized GPA and affidavit on 10.01.1984 as claimed by the plaintiff. It is further denied that subsequently the said Lakshmamma offered the suit schedule property for sale and accordingly the plaintiff purchased the same directly from one of the surviving brothers Thangavelu and wife of Kadiravelu under a registered sale deed dated 26.09.2008 as claimed in the plaint. The alleged possession of the plaintiff over the suit schedule property by virtue of the said sale deed is also denied and they have also denied that the GPA holder Lakshmamma and son of Kadiravelu had also signed on the plaintiff's sale deed as consenting witnesses etc., as claimed. It is the defence of these defendants that the alleged vendors of the plaintiff had no right, title or interest over the schedule property to transfer the same by executing any sale deed and further alleged that the entry found in the encumbrance certificate based on the forged document would not confer any title over the plaintiff and therefore they have specifically denied her claim that she is the lawful and bonafide purchaser of the suit site No.11 9 O.S.No.7157/2012 measuring 30x16 feets. The defendant No.1 & 2 have further categorically denied the allegations of their alleged interference to the possession of the plaintiff over the suit schedule property as alleged by her. On the contrary it is contended that they are the true owners of the suit schedule property having acquired the same from its previous owner under the registered sale deed dated 29.07.2008. The fact that they had filed O.S.No.7591/2008 and their obtaining decree in the suit is admitted by these defendants but they have denied her claim that she has every right even as per the said decree to seek possession of the suit schedule property from them and that their vendors had no legal right to execute the said sale deed in their favour etc., as alleged in the plaint. It is further denied that on the strength of the said decree they started interfering with the possession of the plaintiff over the suit schedule property although they have admitted the fact of the plaintiff filing police complaint against them. It is contended that the plaintiff lodged the said complaint only after their filing O.S.No.7591/2008 and seeking interim relief in that case. It is further denied that in the said suit the court has 10 O.S.No.7157/2012 observed that the vendor of the defendants had no legal right to execute sale deed in their favour and therefore the plaintiff herein has been given liberty to evict the defendants as per law etc., as claimed by her. It is further denied that they are also making efforts to alienate the entire suit site No.11 including the portion purchased by the plaintiff etc., as alleged. They have questioned the maintainability of the suit for want of cause of action and also on the ground that plaintiff has not paid proper Court fee. It is their specific defence that they are the absolute owners in possession of the suit schedule property by virtue of the said sale deed dated 29.07.2008 executed by the original owners through their GPA holder Ramarathnamma and since the date of their purchase they are in lawful possession of the suit schedule property over which the plaintiff has no legal right. It is their contention that after having sold the suit schedule property on 29.07.2008 by the original owners, they had no legal right to once again sell the suit schedule property subsequently to the plaintiff. It is further contended that the said Ramarathnamma when she was in possession of the schedule property, had put up construction over the 11 O.S.No.7157/2012 same during the year 1980 by paying TT fine amount to the Special Tahasildar on 17.11.1980 and obtained water and electricity connection from the concerned department. The defendants have alternatively claimed that they have perfected their title over the suit schedule property by way of adverse possession since their possession over the suit schedule property has been continuous and uninterrupted one and for these reason defendant No.1 & 2 have sought or dismissal of the suit.
4. On the rival contentions of the parties the following issues have been framed :-
1) Whether the plaintiff proves that she is owner of suit property by virtue of sale deed dated 26.09.2008?
2) Whether the plaintiff proves that defendants are in unlawful possession of suit property?
3) Whether the defendants prove that they acquired title to suit property by virtue of sale deed dated 29.07.2008?
4) Whether the plaintiff is entitled for recovery of possession of suit property?
5) Whether the plaintiff is entitled for relief of permanent injunction?12 O.S.No.7157/2012
6) What decree or order?
5. During the pendency of the proceeding the defendants moved I.A.No.VII U/O XIV R.5 CPC seeking to frame an additional issue with regard to limitation aspect and this court while disposing off the said IA has observed that since it is a legal issue and as there has already been evidence on this issue by the parties the same shall be framed at the time of delivering the judgment. In view of the said observation and as it is a legal issue, the same requires to be framed and hence it is framed as under:
"Whether the suit brought by the plaintiff is within limitation?"
6. To substantiate the case of the plaintiff, she has initially deposed before the court as PW1 and later on her husband is examined as PW2 as her GPA holder. Further they have examined three witnesses in support of her claim from P.W.3 to 5 respectively and got marked as many as 21 documents from Ex.P1 to P21. Per contra, the defendant No.1 has been examined as D.W.1 and he has also relied on 20 documents marked from Ex.D.1 to D.20.
7. Heard arguments.
13 O.S.No.7157/2012
8. On hearing and on perusal of the materials and evidence on record, my findings on the above issues and addl. Issue are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : In the affirmative
Issue No.5 : In the negative
Addl. Issue : In the affirmative
Issue No.6 : As per final order, for the following:
-: REASONS :-
9. Issue Nos.1 & 3:- Since both these issues are interconnected as they pertain to the rival claim of the parties regarding their title over the suit schedule property, both these issues are tried together to avoid repetition of facts. As stated supra, it has been the definite case made out by the plaintiff that she was absolute owner in possession of the suit schedule property having purchased the same under the registered sale deed dated 26.09.2008 executed by the original vendors. Though defendant Nos.1 & 2 have also put forth their rival claim on the basis of their earlier registered sale deed 14 O.S.No.7157/2012 dated 29.07.2008 but they have not denied nor disputed the earlier title of the schedule property with one Venkatamma Bovi who was granted 6 acres and 5 guntas in the suit survey number under the Govt. order dated 16.02.1969.
10. The defendants have also not specifically denied that subsequently she sold 50 guntas of land in the said survey number in favour of K. Shanmugam, K. Kadiravelu and K. Thangavelu jointly under a registered sale deed dated 02.08.1980. However the dispute of the defendants is with regard to the further claim of the plaintiff that those 3 persons after purchasing the said property formed layout and jointly sold portion of suit site No.11 in favour of one Lakshmamma under notarized GPA dated 10.01.1984 and affidavit for valuable consideration amount and subsequently the said Lakshmamma offered the schedule property for sale and that the plaintiff being the intending purchaser directly purchased the suit schedule property from the original owners K. Thangavelu and the legal heirs of other executant of GPA Kadiravelu since said Kadiravelu and Shanmugam by that time had 15 O.S.No.7157/2012 already passed away. This claim of the plaintiff has been categorically refuted by the defendant Nos.1 & 2.
11. It is further relevant to note that even the plaintiff has specifically disputed the legal right of the so- called vendor of the defendants to execute the suit schedule property under the sale deed mainly on the ground that even prior to the execution of the said sale deed in favour of the defendants by the so-called GPA holder Ramarathnamma who was none other than the mother of the defendants, two of the executants of GPA i.e., K. Shanmugam and K. Kadiravelu had already passed away and therefore she had no legal right to execute any sale deed in favour of the defendants. In view of these rival contentions of the parties disputing the title deeds of the each other, equal burden is cast on both the parties to prove their lawful title and possession over the suit schedule property by virtue of their respective disputed sale deeds.
12. As stated supra, to substantiate the claim of the plaintiff, she had deposed before the court as P.W.1 and relied on 21 documents of which Ex.P.1 is the original title deed dated 02.08.1980 standing in the names of 16 O.S.No.7157/2012 earlier vendors Shanumgam, Kadiravelu and Thangavelu which is not in dispute. As regards Ex.P2 & P.3, they are the original GPA and affidavit dated 10.01.1984 said to have been executed by the said 3 brothers in favour of Smt.Lakshmamma which is however disputed by the defendants. As regards Ex.P.4 it is the title deed of P.W1 which is once again a disputed document.
13. P.W.1 has also produced the encumbrance certificate at Ex.P.5 for a period from 01.04.1994 to 19.11.2008 standing in her name. As regards Ex.P.6 & 7, they are the death extracts of K. Shanmugam and K. Kadiravelu respectively which are produced to show that they had died much prior to the date of execution of the disputed sale deed of the defendants. As regards Ex.P.8 & 9, they are the copies of FIR and complaint said to have been lodged by the present P.W.1 against the defendants. Ex.P.10 to P.19 are the various tax paid receipts for the period from 2008-09 to 2014-15. Ex.P.20 is the certified copy of the judgment and decree passed in O.S.No.7591/2008 which was filed by the defendants. Ex.P.21 is again a subsequent encumbrance certificate of the suit schedule property for a period from 01.04.2008 to 17 O.S.No.7157/2012 14.01.2015 which once again shows her name. As against this oral and documentary evidence placed before the court by P.W.1, the defendant No.1 has also deposed as D.W.1 and relied on 20 documents.
14. As regards Ex.D.1, it is the copy of deposition of the present P.W.1 in O.S.No.7591/2008. Ex.D2 is the copy of sale deed of the defendants. As regards Ex.D.3, it is said to be the copy of GPA alleged to have been executed in favour of the said Ramarathnamma from whom the defendants claim to have purchased the suit schedule property. They have also relied on Ex.D.4 encumbrance certificate for the period from 01.04.2004 to 23.10.2008 standing in their name. As regards Ex.D.5 & D.6, they are said to be the tax paid receipts. To show their possession over the suit schedule property they have further produced the electricity paid bills and receipts which are marked from Ex.D.7 to D.10 and the water tax paid bills and receipts marked from Ex.D.11 to D.14. Ex.D.15 to D.19 are the various tax paid receipts standing in their name. They have also produced the certified copy of the judgment passed in C.C.No.5903/2008 which was lodged by P.W.1 against them and this document is 18 O.S.No.7157/2012 produced to show that they have been acquitted for the alleged offences. In the backdrop of this oral and documentary evidence placed before the court by both the parties now it is to be seen whether the plaintiff and defendants could establish their title over the suit schedule property as claimed by them.
15. The learned counsel for plaintiff has vehemently argued both in his oral arguments and reiterated in his written argument that as per the observations made by the court in O.S.No.7591/2008 it is now established that the defendant Nos.1 & 2 have absolutely no legal title over the suit schedule property except holding possessary rights and in view of those observations the plaintiff alone would be entitled to exercise her lawful rights over the suit schedule property. The other argument canvassed on behalf of the plaintiff is that since two executants of the GPA i.e., Kadiravelu and Shanmugam had already died much prior to the execution of the disputed sale deed of the defendants at Ex.D.2, the so-called GPA holder Ramaratnamma had absolutely no legal right to alienate the said property in favour of the defendants on the basis of the alleged GPA which 19 O.S.No.7157/2012 automatically stood cancelled on the death of two of the executants.
16. By countering the argument of the plaintiff's counsel, the learned defence counsel has also invited my attention to the very same observations made by the court in O.S.No.7591/2008 and argued that there is no finding nor any observation regarding the cancellation of the sale deed of the defendants and therefore till this date the said document of tile of the defendants has its own authenticity and validity which cannot be questioned by the plaintiff. He has also attacked on the legality and validity of the document of title of the P.W.1 by contending that the so-called sale deed executed in favour of P.W.1 was only by one of the executants of GPA and other one is legal heir of other deceased executant whereas the legal heirs of the third deceased executant have not joined this sale transaction and therefore even this sale deed relied on by P.W.1 has no legal sanctity and consequently it would not confer any valid title on P.W.1. In view of these rival submissions made by both the learned counsels, it is to be seen whether the defendants 20 O.S.No.7157/2012 have derived lawful title under Ex.D2 or whether PW1 has acquired any legal right under Ex.P4.
17. PW1 had led her evidence which is in consonance with the plaint averments. However later on, her husband has been examined as PW2 as her GPA holder with the leave of the court as per the order dtd. 19.11.2015 passed on the application filed U/O III Rule 1 CPC. He has also reiterated the plaint averments and has been cross examined in length. PW2 has clearly denied the suggestion of the defence counsel that the original owners had sold the suit property in the year 1983 in favour of Hemarathnamma who is none other than the mother of the defendants.
18. Much has been cross examined to this witness as to why only Thangavelu and wife of Kadiravelu Vijaya had executed sale deed in favour of PW1. However, PW2 has clarified that since under the GPA, Lakshmamma had not acquired valid title, as per the opinion of the advocate, those two persons being the owners of the suit property executed Ex.P4 sale deed in favour of his wife PW1. No doubt, in Ex.P4 there is no mention about the third owner Shanmugam or his L.Rs, but it is to be noted that if really 21 O.S.No.7157/2012 the legal heirs of Shanmugam had any objection or grievance about the said transaction, they would have very well resisted for the said sale of suit property in favour of PW1. Moreover, it is for them to raise their objections if any and not the defendants.
19. It is further material to note that both the wife and son of the deceased Kadiravelu have deposed before the court as PWs.3 and 4 respectively. PW4 and the GPA holder Lakshmamma had also signed on Ex.P4 as consenting witnesses. However, the learned defence counsel has vehemently argued that in the previous suit as per Ex.P20 judgement, the present plaintiff has categorically admitted the GPA Ex.D3 marked in this case, executed by the original owners Shanmugam and his two brothers in favour of the mother of DW1 Ramrathnamma. In this regard my attention has been invited to the observation made by the court in this judgement on page No.10 wherein the admission of the counsel for the present plaintiff with regard to the said document is referred.
20. The purpose of confronting the copy of Ex.D3 in the earlier case by the present plaintiff's counsel was 22 O.S.No.7157/2012 merely to show some discrepancies in the original and the copy of Ex.D3. However, the court in the said suit has come to the conclusion that Ex.D3 was executed by the original owners in favour of mother of the defendants. No doubt, the counsel for the present plaintiff had confronted the copy of Ex.D3 executed in favour of the mother of DW1 by putting some positive suggestion, but whether the said suggestion would automatically prove the authenticity and genuineness of this document, is the material aspect which requires consideration.
21. It is an undisputed fact that the defendants are claiming their ownership over the suit property under Ex.D2 sale deed based on Ex.D3 GPA alleged to have been executed by the original owners in favour of her mother. Under such circumstances, as rightly argued by the learned counsel for the plaintiff, the burden is on the defendants to prove as to whether their mother Ramarathnamma had derived any lawful title or salable right over the suit property so as to convey the same under Ex.D2 in favour of their sons as on the date of execution of Ex.D2.
23 O.S.No.7157/2012
22. Ex.D3 is shown to have come into existence on 16.12.1983 when all the three original owners were alive which is an admitted fact. Later on, she alleged to have sold the suit property in favour of her sons the defendants under Ex.D2 on 29.07.2008 on which date admittedly two of the executants of Ex.D3 i.e., Shanmugam and Kadiravelu had already passed away which is evident from their death extracts produced by PW1 in this case at Ex.P6 and P7. As per Ex.P6, Shanmugam is shown to have died on 09.09.1997 and as per Ex.P7, Kadiravelu died on 21.04.1985. Both these documents have not been disputed by the defendants. Thus, as on the date of execution of Ex.D2, admittedly these two persons were not alive. Under such circumstances, whether the defendants' mother Ramarathnamma had any legal right to sell the suit property as on 29.07.2008 under Ex.D2 as their GPA holder, is the crucial aspect which requires consideration.
23. It is significant to note that under Ex.D3, the original owners are shown to have delegated some limited powers in favour of the mother of the defendants. On the plain reading of the recitals of this document, it is clearly 24 O.S.No.7157/2012 revealed that she was merely authorized to deal with the suit property on their behalf. No doubt, such powers also include the power to alienate the suit property, but it was also to be effected on their behalf and not on her own as the owner of the suit property. Nowhere this document recites that the owners had sold the suit property to her by receiving any consideration amount and it is also not the defence of the defendants. All that has been contended by them is that under this GPA their mother acquired the suit property and came in possession of the same.
24. Therefore, as rightly pointed out by the plaintiff's counsel, the said Ramarathnamma had not at all acquired any absolute salable title over the suit property under Ex.D3. At the most on the plain reading of this document, it could be said that the possession of the suit property was delivered to her by the owners authorizing her to deal with the same on their behalf. Therefore, Ex.D3 could be considered only to that limited extent. It is also material to note that even the court in O.S 7591/2008 in para 12 of its judgement has observed that even though Ex.D3 was an irrevocable power of attorney 25 O.S.No.7157/2012 it was valid only till the death of Sri.Shanmugam and Kadiravelu and hence, the defendants' mother had lost right over the suit property after their death. This material observation is found on page Nos.14 and 15 which run thus:
".....Though the said General Power of Attorney was an irrevocable GPA, it was valid only till the death of Sri. Shanmugam and Sri. Kadiravelu. As such, the plaintiffs' mother lost her right over the suit schedule property given under Ex.P2 soon after the death of Sri.Shanmugam and Sri.Kadiravelu. Hence, she had no right to execute any sale deed on behalf of Sri.Shanmugam and Sri.Kadiravelu in respect of the suit schedule property in favour of the plaintiffs. Hence, the plaintiffs cannot acquire ownership over the suit schedule property under Ex.P1, so far as share of Sri.Shanmugam and Sri.Kadiravelu is concerned".
25. The above observation of the court would clearly indicate that under Ex.D3, the mother of the defendants had merely acquired right to deal with the suit property only till the lifetime of Sri.Shanmugam and Sri.Kadiravelu who were the co-executants of Ex.D3 and 26 O.S.No.7157/2012 after their death she had lost her right so far as their shares are concerned. Consequently the court further held that since the possession of the suit property was delivered to the defendants' mother under Ex.D3 their right over the said property was no better than mere possessory rights and hence, in para 20 of the judgement the court observed that as the present defendants have not acquired any title or ownership or any other right over the suit schedule property in accordance with law, it has to be held that possession of the plaintiffs over the suit schedule property is a settled possession only. Ultimately the court decreed the said suit granting permanent injunction in favour of the present defendants restraining the plaintiff herein from interfering with their possession till they are evicted under due process of law. These material findings of the court have remained unchallenged by the present defendants till this date. Therefore, the same are binding on both the parties.
26. However, the learned defence counsel has vehemently argued that u/s 3 of the Power of Attorney Act, when the date of death of the executant is not known to the attorney holder, such GPA is valid and the burden is 27 O.S.No.7157/2012 on the plaintiff to prove that the defendants and their mother were aware of the death of Shanmugam and Kadiravelu. How far this argument could be sustained, is to be seen. In this regard, the evidence of DW1 is noteworthy to be referred. In his cross examination he has conveniently pleaded his ignorance about the dates of death of Shanmugam and Kadiravelu, but has not specifically denied that they died in the year 1997 and 1985 respectively. He has also not denied that as on the date of execution of Ex.D2 by their mother, Sri.Shanmugam and Sri.Kadiravelu were not alive. This material piece of his statement is found in his cross examination dtd. 10.12.2019 in para 5 on page Nos. 5 and 6 as under:
".........I do not know whether Kadiravelu died on 23.04.1985 and Shanmugam died on 09.09.1997. My mother not negotiated with Kadiravelu and Shanmugam. I did not file any civil suit against the plaintiff in the year 2008. Original of Ex.D2 is with me. I can produce it. It is true that Ex.D2 is sale deed executed by my mother as GPA holder of Kadiravelu, Shanmugam and Thangavelu. I do not know whether as on the date of Ex.D2 this Kadiravelu, Shanmugam and 28 O.S.No.7157/2012 Thangavelu not alive. I have no documents to show the payment of Rs.22,00,000/- in consideration amount to my mother except Ex.D2".
27. The above statements of DW1 would clearly indicate that they were infact, aware about the death of Kadiravelu and Shanmugam as on the date of execution of Ex.D2 by their mother. Furthermore, as admitted by him, except Ex.D2, he has no documents to prove the passing of consideration amount mentioned in this deed to their mother from them. Under such circumstances, as rightly argued by the learned counsel for the plaintiff, this sale deed is a mere nominal deed brought into existence to lay their false claim over the suit property. It is a well settled position of law that unless and until there is a proper conveyance as per law by transfer of immovable property coupled with a valid consideration, it cannot be said that the title would be transferred legally under any such GPA. This position of law has been well settled by the Hon'able Apex court in a decision which is cited by the plaintiff's counsel reported in Suraj Lamp and Industries Pvt. Ltd., through Director v/s State of Haryana and another in (2012) 1 SCC 656 as under:
29 O.S.No.7157/2012
"Immovable property can be transferred/conveyed only by deed of
conveyance (sale deed) duly stamped and registered as required by law. Transaction of the nature of "GPA Sales" or "SA/GPA/Will transfers" do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Sec.53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/Will transactions known as GPA sales".
28. Though in the above cited decision the Hon'able Supreme Court has also given certain protections to such GPA transfers made prior to the date of the said 30 O.S.No.7157/2012 judgement, but such protection is held given only to those transactions which were proved to have been entered into legally and genuinely. In the instant case though the Ex.D3 is of the year 1983, but no protection as held in the above decision could be given to either the defendants or their mother for the simple reason that as stated supra, Ex.D3 is not at all a sale transaction, but on the other hand, from its plain reading itself it is manifst that it was a mere GPA executed by the owners in her favour just to deal with the suit property on their behalf and admittedly on the death of two of the executants, even that right also got extinguished. Further, as discussed above while referring to the evidence of DW1, there is no specific denial by him that as on the date of execution of Ex.D2 sale deed in their favour by their mother, already Kadiravelu and Shanmugam had died. Therefore, viewed from any angle, it cannot be said that Ex.D3 is a GPA sale transaction so as to extend the protection as held in the above decision. Hence, by applying the ratio laid down in this decision to the present case, it could safely be held that the mother of the defendants had no legal and salable title to alienate the suit property to her sons under Ex.D2. 31 O.S.No.7157/2012
29. It is further pertinent to note that even PWs.3 and 4 who are none other than the wife and son of one of the executants of GPA Kadiravelu, have categorically denied in their cross examination that all the three owners had jointly sold the suit property to the mother of the defendants. Under such circumstances, as rightly argued by the plaintiff's counsel, when the defendants' mother herself had no legal right to sell away the suit property as on the date of execution of Ex.D2 in favour of the defendants, they have not derived any lawful title over the same and already this material aspect has been affirmed by the court in the earlier proceeding as per Ex.P20 judgement and decree which has attained finality. Moreover, till this date despite suffering such findings they have not attempted to get established their title to the suit property by filing any suit for declaration. Under such circumstances, it cannot be said that under Ex.D2 they have acquired any lawful title over the suit property.
30. As regards the title of PW1 over the suit property, as stated supra, though the defendants have contended that without the participation of the legal heirs of deceased Shanmugam, Ex.P4 sale deed is invalid and 32 O.S.No.7157/2012 will not convey any legal right on the plaintiff, but it is to be noted that though all the three brothers had jointly purchased portion of the suit survey number from its original owner Venkatamma under Ex.P1 sale deed, but the extent of the property purchased by them was 50 guntas whereas under Ex.P4, the plaintiff herein has purchased only a small extent measuring East-West 30 feets and North-South 16 feets totally 480 Sq. feets to the extent of the rights of only two co-owners i.e., Thangavelu and L.Rs. of deceased Kadiravelu which would not, in any way, affect the rights of the legal heirs of other deceased owner Shanmugam. Therefore, this contention raised by the defendants that in their absence no credibility be attached to Ex.P4, cannot be accepted. Consequently, it is to be held that the plaintiff has acquired lawful title over the suit property under Ex.P4 as against the disputed title of the defendants under Ex.D2. Consequently both these issues will have to be answered accordingly thereby answering the first issue in favour of the plaintiff in the affirmative and the third issue against the defendants in the negative.
33 O.S.No.7157/2012
31. Issue No.2 :- It is alleged by the plaintiff that the defendants have been illegally claiming their title over the suit property by virtue of the disputed sale deed Ex.D2 and have been squatting over the suit property illegally. As discussed above, already the court in Ex.P20 proceeding, has affirmed the actual physical possession of the defendants over the suit property by virtue of Ex.D3. It is further to be noted that nowhere the court in the said judgement has held that such possession of the defendants is unlawful. On the contrary, it has been held that under Ex.D3 itself, the original owners had handed over possession of the suit property to the defendants' mother.
32. Though it is held in Ex.P20 judgement that the mother of the defendants had no legal right to alienate the same under Ex.D2 under the said GPA, but nevertheless it has been held that till this date the defendants are in possession of the suit property by virtue of Ex.D3. This judgement and decree has not been challenged by any of the parties. It is further to be noted that even the court has ordered that since the defendants are in settled possession of the suit property, the plaintiff herein shall 34 O.S.No.7157/2012 interfere with their possession until they are evicted in accordance with law. Therefore, the allegation of the plaintiff that they are in unlawful possession of the suit property cannot be sustained. Hence, this issue will have to be answered against the plaintiff in the negative.
33. Issue No.5 :- It is alleged by the plaintiff that the defendants on the strength of Ex.D2 sale deed, have been attempting to alienate the suit property to third parties and hence, she has sought for the relief of permanent injunction in this regard. It is relevant to note that except a bare statement made in the pleadings and evidence, the said allegation is not substantiated with any supporting materials either oral or documentary. No effort is made furnish any details of such alleged sale transactions which are attempted to be effected by them. Therefore, in the absence of any supporting materials to support this allegation, she cannot be granted the equitable relief of injunction. Hence, even this issue is answered against her in the negative.
34. Issue No.4 and additional issue No.1 :-
Since both these issues are interconnected as they relate to the entitlement of the plaintiff to seek the suit relief, 35 O.S.No.7157/2012 they are tried together to avoid repetition of facts. In view of the findings rendered on issue No.1 now it is proved that P.W1 has legally and validly purchased the suit schedule property under Ex.P.4-sale deed. On the contrary as discussed supra, it has been now proved that the defendant Nos.1 & 2 have not acquired any legal and valid title over the said property by virtue of Ex.D.2 sale deed in view of the fact that their mother Ramarathnamma being the GPA holder of the original owners had no legal right to alienate the said property in favour of these defendants. It is also to be noted that even this issue has been conclusively held by the court in the earlier proceeding which has remained unchallenged by these defendants.
35. However the defendants have raised objection with regard to entitlement of the plaintiff to seek the suit reliefs mainly on the legal ground of limitation. During the pendency of the proceeding the defendants filed application seeking for framing 36 O.S.No.7157/2012 additional issue regarding limitation. This court while deciding the said IA, has observed that since there has been evidence on this issue led by the parties and as this issue is a legal issue it could be framed and decided at the time of disposing of the matter on merits.
36. The learned counsel for defendants has vehemently argued that O.S.No.7591/2008 was filed on 17.11.2008 and it was disposed off on 18.08.2012. It is further pointed out that the evidence was also commenced in the said suit on 05.06.2009, but till this date the plaintiff has not sought for cancellation of Ex.D.2 sale deed of the defendants, but without seeking such relief she has directly filed the present suit in the year 2012 which is hopelessly barred by limitation. The defendants have also sought to non-suit the plaintiff even for the relief of possession on the ground of limitation.
37. According to the exhaustive argument of the defence counsel, when it has already come to the knowledge of PW1 in the year 2008 itself that defendant Nos.1 & 2 have claimed their title by virtue of Ex.D.2- sale 37 O.S.No.7157/2012 deed then she ought to have challenged the said sale deed within limitation and now without seeking such relief at the appropriate stage of the proceeding, the present suit cannot be sustained and has to be dismissed on the point of limitation. By countering this argument, the learned counsel for plaintiff also contended that the defendants are estopped from raising this issue regarding limitation without there being any pleading to that effect. In support of his argument he has also sought to rely on a decision of the Hon'ble Supreme Court in Banarasi Das v/s Kanshi Ram and others in AIR 1963 SUPREME COURT 1165 wherein the Hon'ble Supreme Court while considering an application U/O XLI R.25 in a civil matter held that plea of limitation involving mixed question of fact and law should not be allowed to be raised for the first time in the argument in the second appeal before the Hon'ble High Court especially when it was raised by the non-contesting defendant who had not filed a written statement in the suit.
38. With due regards to the proposition of law laid down in the above cited decision, it cannot be said that the same could be extended to the facts on hand for the 38 O.S.No.7157/2012 simple reason that the defendants herein have already filed their written statement and even in the absence of any defence regarding limitation in the written statement, the court itself can consider this issue since it is a pure question of law. Furthermore such plea was raised in the above cited decision at the appellate stage for the first time before the Hon'ble High Court which is not the circumstance in the instant case as the parties herein are still at the original stage before this court. Therefore the principles laid down in this decision would not apply to the present case.
39. However the material aspect which requires consideration in this case while considering the point of limitation is that the main objection of the defendants is that the plaintiff ought to have sought for cancellation of their sale deed. This contention of the defendants cannot be sustained for the reason that the said sale deed at Ex.D.2 itself is now proved to be an invalid sale deed under which the defendants have not derived any lawful title over the schedule property since their mother herself had no salable right over the said property as on the date 39 O.S.No.7157/2012 of execution of Ex.D.2. Under such circumstances the plaintiff need not have sought for its cancellation.
40. One more material aspect which is to be noted here is that the suit of the plaintiff is not one for mere declaration of her title over the schedule property, but along with the said relief she has also sought for recovery of possession of the schedule property from the defendants. Under such circumstances merely because she has not sought for cancellation of Ex.D.2 it cannot be said that her claim for even the relief of possession is barred by limitation. It is further pertinent to note that the defendants herein have also incidentally claimed that since they are in settled position of the schedule property they have acquired their title by way of adverse possession. No doubt they have not sought for any specific relief of declaration on this plea of adverse possession, but there are specific pleadings to that effect in their written statement. Under such circumstances the burden would be on them to satisfy the essentials of adverse possession.
41. It is an equally settled law that once the defendants raise the plea of adverse possession it cannot be said that the plaintiff's suit based on title is barred by 40 O.S.No.7157/2012 limitation and this position of law has been well settled by the Hon'ble Supreme Court in a decision cited by the plaintiff's counsel reported in C. Natarajan v/s Ashim Bai and another in AIR 2008 SC 363 wherein it is held as under:
"The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession".
42. The principles laid down in the above cited decision will have to be aptly extended to the present case, because as held above, the suit of the plaintiff herein is also based on her title over the suit schedule property and admittedly there has been a specific plea of adverse possession by the defendants even though they 41 O.S.No.7157/2012 have not proved it. The Hon'able Supreme Court has well settled this position of law in a decision reported in Mohandas Dattaram Prabhu and others v/s U.F.M Mukund Honnappa Naik in ILR 1998 KAR 1422 : (SC) as under:
Limitation Act 1963: Article 65-- Suit for possession of immovable property based on title-- Held, once the title is established, unless the defendant proves adverse possession, the plaintiff cannot be non suited.
43. In view of the above settled position of law, now it is no longer open to the defendants to raise the point of limitation to non-suit the plaintiff when they have failed to prove the plea of adverse possession. Even otherwise it is pertinent to note that the court in O.S.No.7591/2008 has categorically observed that under Ex.D.2 the defendants herein have not acquired any lawful title over the schedule property and as they are proved to be in settled position of the schedule property, the plaintiff cannot interfere with their possession unless they are legally evicted from the schedule property. These observations give a clear indication that the court has 42 O.S.No.7157/2012 already recognized the title of the plaintiff over the schedule property. However since it was a suit for bare injunction, certainly the court had not gone into the issue regarding title, but incidentally the findings rendered by the court establish that the title of the plaintiff over the schedule property was already recognized. Since the defendants are now proved to have not derived any lawful title over the schedule property and the one which they hold under Ex.D.2 is a defective title, they cannot raise any voice to non-suit the plaintiff on the ground of limitation. Therefore as rightly argued by the learned counsel for plaintiff, she cannot be non-suited on this ground of limitation as contended by the defendants.
44. Now the next material aspect which remains for consideration is as to the entitlement of the plaintiff to seek recovery of possession of the schedule property from the defendants. As discussed supra, already in the earlier proceeding the court has given liberty to P.W.1 to evict the defendants as per law. Rightly she has come up with the present suit seeking for recovery of possession of the schedule property. Now it is proved that the title of the defendants over the schedule property is defective and not 43 O.S.No.7157/2012 under valid transfer of title. Under such circumstances at the most their right over the schedule property is to be held only as the possessary right. Under such circumstances the plaintiff is certainly entitled to recover the said possession from the defendants.
45. Again the defendants have questioned the right of the plaintiff to recover possession of the schedule property on the ground of bar of limitation. However as already held above while relying on the principles laid down in Natarajan's case referred to supra, since the defendants have utterly failed to establish their title over the suit schedule property by way of adverse possession and as the relief of possession claimed by the plaintiff is based on her title, it cannot be said that she has to be non-suited on the ground of limitation. Therefore on this count also the plaintiff will have to be granted the relief of possession as sought for. Hence viewed from all these angles it could squarely be held that the plaintiff could prove her entitlement to seek the suit reliefs as sought for and hence both these issues are accordingly answered in her favour in the affirmative.
44 O.S.No.7157/2012
46. Issue No.6:- In the light of the findings given on the above issues and in the facts and circumstances of the case, the parties to this suit are directed to bear their own cost of litigation. In the result, the court hereby proceeds to pass the following:-
ORDER The suit filed by the plaintiff against the defendants for the relief of declaration, possession and permanent injunction is hereby partly decreed.
The plaintiff is hereby declared to be the lawful owner of the suit schedule property by virtue of the registered sale deed dated 26.09.2008.
The defendants are further directed to deliver the vacant possession of the suit schedule property to the plaintiff within two months from the date of this order and on their failure to comply with the same the plaintiff is at liberty to recover the possession through the process of Court.45 O.S.No.7157/2012
However the relief of permanent injunction claimed by the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Part of the judgment dictated to the Judgment Writer, transcribed by him on Computer and part of the judgment typed by me on the Laptop, carried out corrections, print out taken and then pronounced in the open court on this the 21st day of January, 2022) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Smt.Sunanda PW.2 : Basavaraj PW.3 : Smt.Vijaya PW.4 : K. Anandakumar PW.5 : K. Lokesh Babu List of documents exhibited for plaintiff:
Ex.P1: Certified copy of sale deed dt.2.8.1980
Ex.P2: Original GPA dt.10.1.1984
Ex.P3: Affidavit dt.10.1.1984
Ex.P4: Original sale deed dt.26.9.2008
Ex.P5: E.C. from 1.4.1994 to 19.11.2008
Ex.P6: Death certificate of Shanmugam
46 O.S.No.7157/2012
Ex.P7: Death certificate of Kadiravelu
Ex.P8: Certified copy of FIR
Ex.P9: Certified copy of complaint
Ex.P10-15: Six tax paid receipts for the year 2008-09 to 2011-12 Ex.P16-19:Four tax paid receipts for the year 2011-12 to 2014-15 Ex.P20: Certified copy of the judgment and decree in OS No.7591/2008 Ex.P21: E.C. from 1.4.2008 to 14.1.2015 Ex.P22 : Certified copy of order sheet in OS N.591/2009 Ex.P23 : Certified copy of plaint in OS N.591/2009 List of witnesses examined for defendants:
DW1 : Somashekar List of documents exhibited for defendants:
Ex.D.1 : Deposition of P.w.1 in OS 7591/2008
Ex.D2 : Certified copy of sale deed
Ex.D3 : Certified copy of GPA
Ex.D4 : Certified copy of EC
Ex.D5 : Certified copy of 2 receipts
& D6
Ex.D7 : Electricity bill
Ex.D8 : Certified copy of electricity bill
Ex.D9 : Electricity receipt
Ex.D10 : Certified copy of BWSSB bill and receipts
& D14
Ex.D15 : Tax paid receipts
to D18
Ex.D19 : Acknowledgement issued by BBMP
47 O.S.No.7157/2012
Ex.D20 : Certified copy of judgment in
CC No.5903/2009
X Addl. City Civil & Sessions Judge,
Bangalore.