Bangalore District Court
In Os Smt.Nagarathnamma vs In Os 1. Gopal on 19 March, 2022
IN THE COURT OF THE IV ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU
(CCH-21)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge & C/c IV ACC & SJ.,
Bengaluru
Dated this the 19 th day of March, 2022
O.S.Nos.25133/2007, 25134/2007
& OS No.25137/2007
Plaintiffs in OS Smt.Nagarathnamma
No. 25133/2007:- Since dead by Legal heirs:-
1(a) N.Dasappa,
Son of Late Nagappa,
Aged about 89 years,
Residing at No.5, 3rd Cross,
Cubbonpet, Bengaluru -02
1(b) Chandra.R,
D/o N.Dasappa @ Late
Nagarathnamma, W/o
Ramachandra.G., Aged about 63
years, Residing at No.1, 4th Cross,
Shivanna Layout,
Halagevaderahalli, Rajarajeshwari
Nagar, Bengaluru
1(c) D.Mukund,Son of Late
Nagappa,Aged about 60
years,Residing at No.5, 3rd Cross,
Cubbonpet, Bengaluru -02
2
OS No.25133, 25134
& 25137/2007
1(d) D.Gangadhar,
Son of Late Nagappa,
Aged about 58 years,
Residing at No.5, 3rd Cross,
Cubbonpet, Bengaluru -02
1(e) D.Venkatesh,
Son of N.Dasappa,
Aged about 54 years,
Residing at No.90/35, 1st Main,
4th Cross, Vittala Nagar,
Bengaluru 560 026.
1(f) D.Nagaraj,
Son of N.Dasappa,
Aged about 52 years,
Residing at No.62, Near Jolly
Club, Bheema Rao Layout,
Anekal Town, Bengaluru
[By Sri.JS-Adv.]
Plaintiffs in OS Smt.Nagarathnamma
No. 25134/2007:- Since dead by Legal heirs:-
1(a) N.Dasappa,
Son of Late Nagappa,
Aged about 89 years,
Residing at No.5, 3rd Cross,
Cubbonpet, Bengaluru -02
1(b) Chandra.R,
D/o N.Dasappa @ Late
3
OS No.25133, 25134
& 25137/2007
Nagarathnamma, W/o
Ramachandra.G., Aged about 63
years, Residing at No.1, 4th
Cross, Shivanna Layout,
Halagevaderahalli,
Rajarajeshwari Nagar, Bengaluru
560 098.
1(c) D.Mukund,
Son of Late Nagappa,
Aged about 60 years,
Residing at No.5, 3rd Cross,
Cubbonpet, Bengaluru -02
1(d) D.Gangadhar,
Son of Late Nagappa,
Aged about 58 years,
Residing at No.5, 3rd Cross,
Cubbonpet, Bengaluru -02
1(e) D.Venkatesh,
Son of N.Dasappa,
Aged about 54 years,
Residing at No.90/35, 1st Main,
4th Cross, Vittala Nagar,
Bengaluru 560 026.
1(f) D.Nagaraj,
Son of N.Dasappa,
Aged about 52 years,
Residing at No.62, Near Jolly
Club, Bheema Rao Layout,
Anekal Town, Bengaluru
4
OS No.25133, 25134
& 25137/2007
[By Sri.JS-Adv.]
Plaintiff in N.Dasappa
OS No. Son of V.Nagappa,
25137/2007:- Aged about 72 years,
Old No.5, New No.11, 3rd Cross,
Cubbon Pet,
Bengaluru 560 002
[By Sri.JS-Adv. ]
Vs.
Defendants in OS 1. Gopal,
No. 25133/2007, Son of Krishnappa,
25134/2007 & Aged about 52 years,
25137/2007:- 2. Muniraju,
Son of Krishnappa,
Aged about 36 years,
3. Manjunath,
Son of Krishnappa,
Aged about 29 years,
All are Residing at Kudlu
Village, Singasandra Post,
Bengaluru 560 068
[By Sri.MSS-Adv]
Date of Institution OS No.25133/2007 17.01.2007
of suit: OS No.25134/2007 17.01.2007
OS No.25137/2007 17.01.2007
5
OS No.25133, 25134
& 25137/2007
Nature of the Suit
(Suit for Pronote,
Suit for Declaration Injunction Suits
and Possession,
Suit for Injunction,
etc.):
Date of OS No.25133/2007 14.07.2008
Commencement of
OS No.25134/2007 14.07.2008
recording of
OS No.25137/2007 14.07.2008
evidence:
Date on which the
Judgment was 19.03.2022
pronounced:
Total Duration:
Years Months Days
OS No.25133/2007 15 02 02
OS No.25134/2007 15 02 02
OS No.25137/2007 15 02 02
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
& C/c IV ACC & SJ.,Mayo Hall,
Bengaluru.
6
OS No.25133, 25134
& 25137/2007
COMMON JUDGMENT
Plaintiffs in OS No.25133/2007 and OS No. 25134/
2007 and Plaintiff is OS No.25137/2007, have sought
decree of Permanent Injunctions to restrain the
defendants from interfering with the peaceful possession
and enjoyment of the suit schedule property and also to
restrain the defendants from creating any fraudulent
conveyance deed by suppressing the sale effected in
favour of the plaintiff in respect of the suit schedule
property and also for mandatory injunction directing the
defendants to hand over the vacant possession of the
property by dismantling and removing the compound wall
put up therein by the defendants and for costs.
The Defendants are common in both the suits. For
the sake of convenience common judgment is being
7
OS No.25133, 25134
& 25137/2007
passed in OS Nos.25133/2007, 25134/2007 and 25137/
2007.
2. Brief facts of the case of the Plaintiff in OS
No.25133/2007, 25134/2007 and OS No.25137/2007 in
common are as below:-
Property bearing Survey Number-42 situated at
Aralukunte village, Begur Hobli, Bengaluru South Taluk
measuring 1 Acre 16 guntas originally belonged to
Krishnappa S/o Venkatappa who acquired the same by
virtue of partition effected between himself and his
brother, who in turn formed a Layout in the said land
during the year 1988, Out of the layout, site no.24 which is
the suit schedule property in OS No. 25133/2007 was sold
to the plaintiff under a Sale Deed dtd. 15.12.1997 and Site
No.15 which is the suit schedule property in OS
8
OS No.25133, 25134
& 25137/2007
No.25134/2007 was sold to plaintiff under a sale
agreement dtd.24.10.1996 and subsequently under Sale
Deed dtd.15.12.1997 and site Nos.7 and 13 which are the
suit schedule properties in OS No.25137/2007 were sold to
one Smt.Nagarathamma W/o Dasappa under Sale
Agreement dtd. 14.12.1988 subsequently purchased under
a Sale Deed dtd. 21.03.1994. During September 1996
original owners from the side of the second wife's family
put forth a claim and accordingly an agreement was
entered into on 9.9.1996 in settling all the claims of them
with regard to the plaintiffs and other purchasers. On
26.07.2004 katha has been effected in the name of
respective plaintiffs by Bommanahalli Nagara Sabha.
Plaintiffs have also paid taxes to the concerned authorities.
Plaintiffs have paid betterment charges. That the
defendants are the children of Krishnappa, who sold the
9
OS No.25133, 25134
& 25137/2007
suit property in favour of plaintiffs. In the layout formed
by Krishnappa they have also retained some portions of
the property towards the share of first wife as well as her
son and second wife as well as her children and in all 17
sites were sold to different purchasers i.e. site Nos.28 to 34
retained for the first wife's family including the first
defendant. Right from the date of purchase, the plaintiffs
are in possession and enjoyment of their respective suit
schedule properties. Though the defendants have no
manner of right, title, interest and possession over any
portion of the suit schedule properties, they started
threatening the plaintiffs by interfering with their
possession over the suit schedule property on 3.1.2007.
Further, in the suits this court was pleased to issue an ad-
interim order of status quo which came to be confirmed by
the High Court of Karnataka, Bengaluru. But, the
10
OS No.25133, 25134
& 25137/2007
defendants taking advantage of the pendency of the suit
ventured to dump waste material in the layout and a
complaint in that regard has been lodged before HSR
Layout Police Station on 5.1.2009 and also to the local
authorities who intervened and removed the blockage and
also got tarred 20 feet width road. On 09.3.2011 plaintiffs
reliably came to know that the defendants started
construction activities in site nos. 20 to 22 apart from
putting up compound wall in site nos. 17 to 21 and 23 to
28 and also put up temporary zinc sheet sheds in sits nos.
5 to 16 apart from dumping scarp materials on the sites by
blocking the entrance of 25 feet road apart from utilizing
some portions as cow shed. Since the defendants violated
the court order, plaintiff was inclined to initiate contempt
proceedings before the High Court of Karnataka, Bengaluru
in which an observation was made to the plaintiffs to
11
OS No.25133, 25134
& 25137/2007
approach the trial court in the pending suit. Hence, a court
commissioner was appointed who submitted a report in
the suit. On these grounds, the plaintiffs have sought the
reliefs against the defendants.
3. The Defendants 1 to 3 who are common in both
the suits have filed written-statement and addl. Written
statement and contested the suit.
4. Brief facts of the written-statement and Addl.
Written statement of defendants in common are as
under:-
Defendants admit the land in question belonged to
Krishnappa, however, they denied that there was layout
formed and sites were sold and suit schedule properties
are in existence. It is also stated that Krishnappa and his
children have no independent right to enter into any
12
OS No.25133, 25134
& 25137/2007
Agreement of Sale or to execute the Power of Attorney in
the name of plaintiff or in the name of any other persons
in respect of land bearing Survey Number-42 of
Aralakunte village. It is stated that as on the date of the
Sale Deed there was no house constructed and even today
no house is in existence. All the revenue records stand in
the name of one Chinnappa @ Yallappa. When the suit
schedule property is not in existence, sale deeds relied
upon by the plaintiffs to prove the possession of the same
will not help them in any manner. There was a litigation
pending between the first defendant, their father in OS
No.8415/1996 in the court of City Civil Court, Bengaluru
and same was concluded by way of compromise on
27.11.2006. Thereafter their father died on 07.12.2006 and
in the said compromise they have filed a sketch showing
how they have partitioned the land bearing Survey
13
OS No.25133, 25134
& 25137/2007
Number-42 and other properties and they have been in
possession and enjoyment of the same. Plaintiffs are not in
possession of the said lands or any portion of land bearing
Survey Number-42. The alleged receipts obtained from the
Panchayath are all created documents for the purpose of
the case. As per the revenue records it has been continued
as agricultural land and the same is not converted till
today. The alleged Power of Attorney given to the plaintiffs
and other parties in the connected suits have been
cancelled by the first defendant and their father
Krishnappa and they have no authority to deal with the
same in any manner. The suits are not maintainable for the
simple reason that as on the date of filing the suits,
plaintiffs are not in possession of the suit schedule
property. Hence the suit is liable to be dismissed. That the
plaintiffs have not sought for any declaratory reliefs as
14
OS No.25133, 25134
& 25137/2007
regards their title over the suit schedule properties. In the
absence of any prayer to recover possession of the suit
property, mere prayers for mandatory or permanent
injunction will not survive and the same cannot be granted.
On these grounds, defendants have prayed for dismissing
the suit of the plaintiffs with costs.
5. In support of the plaintiff's case, in these suits,
plaintiff in OS No.25137/2007 got examined himself as
PW.1 and also General Power of Attorney Holder of the
plaintiffs in all the suits as PW.2 and got marked 55
documents as Exs.P.1 to Ex.P.55. On behalf of the
defendants, defendant No.1 got examined as DW.1 and
got marked 52 documents as Ex.D.1 to D.52. Court
commissioner has been examined as CW.1 and Ex.C.1 to
C.12 got marked.
15
OS No.25133, 25134
& 25137/2007
6. Heard arguments.
Learned counsel for the plaintiffs has relied upon the
following decisions:-
1) AIR 1969 Supreme court 73
2) 2012 SCC Online Delhi 2937
3) (2008) 4 SCC 594
4) (2019) 17 SCC 692
5) 2021 SCC Online SC 675
6) (1995) 6 SCC 50
7) (1997) 3 SCC 443
8) (1994) 2 SCC 266
9) (1996) 4 SCC 622
10)1975 SCC Online Mad. 73
11) 1985 SCC Online Cal. 146
12) 2016 SCC Online Hyd. 490
13) 2012 (3) SCALE 550
Learned counsel for the defendants has relied upon
the following decisions:-
16
OS No.25133, 25134
& 25137/2007
1) ILR 2014 Karnataka 4716
2) ILR 2016 Karnataka 2670
3) AIR 2008 Supreme Court 2033
4) AIR 2018 (SUPP) SC 1159
5) CA. 6989-6992/2001
6) AIR 2021 SC 4923
7) 2021(2) Karnataka L.R. 477 (SC)
8) AIR 1992 Bombay 149.
7. Following Issues and Addl Issues have been
framed in OS No.25133/2007:-
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
17
OS No.25133, 25134
& 25137/2007
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
8. Following Issues and Addl.issues have been
framed in OS No.25134/2007:-
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
18
OS No.25133, 25134
& 25137/2007
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
9. Following Issues and Addl.issues have been
framed in OS No.25137/2007:-
19
OS No.25133, 25134
& 25137/2007
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
20
OS No.25133, 25134
& 25137/2007
10. For the reasons stated in the subsequent
paragraphs, I answer above Issues as follows:-
ISSUE No.1 in OS
Nos.25133/2007 :- In the negative
25134/2007
Issue No. 1 in
OS No.25137/2007 :- In the affirmative
ISSUE No.2 in OS
Nos.25133/2007 :- In the negative
25134/2007
Issue No.2 in
OS No. 25137/2007 :- In the affirmative
ISSUE No.3 in OS
Nos.25133/2007
& 25134/2007 :- In the negative
ISSUE No.3 in
O.S.No.25137/2007 :- In the affirmative
Addl. Issue No.1
in OS Nos.
25133/2007
& 25134/2007
and 25137/2007 :- In the affirmative
21
OS No.25133, 25134
& 25137/2007
Addl. Issue No.2
in OS Nos.
25133/2007
& 25134/2007
and 25137/2007 :- In the negative
Addl. Issue No.3
in OS Nos.
25133/2007
& 25134/2007
and 25137/2007 :- In the negative
Addl. Issue No.4
in OS Nos.
25133/2007 :- In the negative
& 25134/2007
Addl. Issue No.4
in OS No. 25137/2007 :- In the affirmative
Issue No.4 in
in OS Nos. 25133/2007:- As pr final order
& 25134/2007 for the following:-
Issue No.4 in
OS No.25137/2007 :- As per final order for
the following:-
REASONS
22
OS No.25133, 25134
& 25137/2007
11. Issue No.1 and Addl.Issue No.1 in OS No.
25133/2007, 25134/2007 and 25137/2007:- Suit
schedule properties in these suits are Site No.24 in OS
No.25133/2007, Site No.15 in OS No.25134/2007 and Site
Nos.7 and 13 in OS No.25137/2007. OS No.25133/2007
and OS No.25134/2007 have been filed by Smt.
Nagarathnamma since dead, she is represented by her
Legal heirs and OS No.25137/2007 has been filed by
Dasappa. Above said deceased Nagarathanamma is the
wife of N.Dasappa(Plaintiff in OS No.25137/2007). The suit
schedule sites are said to be carved out in the land bearing
Survey Number- 42 situated at Arulukunte village, Begur
Hobli, Bengaluru South Taluk admeasuring 1 Acre 16
guntas. Formation of the said sites in the said land is not
admitted by the Defendants. However, it is an admitted
fact that the land bearing Survey Number- 42 measuring 1
23
OS No.25133, 25134
& 25137/2007
Acre 16 guntas belonged to the father of the defendants 1
to 3 namely Krishnappa and he had acquired the same
under a Partition Deed between himself and his brothers.
Krishnappa's brother is said to have had purchased larger
extent in Survey Number- 42 on behalf of the joint family
and in the partition above said extent of 1 Acre 16 guntas is
said to have fallen to the share of defendants' father
Krishnappa. This is actually not in dispute. Plaintiffs claim
is that the site Nos.15 and 24 mentioned above was
purchased by plaintiff Nagarathanmma for a sale
consideration of Rs.60,000/- under a Regd. Sale Deed
dtd. 15.12.1997 through General Power of Attorney
Holder of Krishnappa and his family members; Site No.15
and 24 (In General Power of Attorney in one place the
number is wrongly mentioned as Site No.15 and 16 but in
schedule it is shown as Site No.15 and 24) were acquired
24
OS No.25133, 25134
& 25137/2007
by Plaintiff for sale consideration of Rs.60,000/- from
Krishnappa and his family members through their General
Power of Attorney Holder Dasappa i.e., her husband
under Sale Deed dtd. 15.12.1997; and site Nos.7 and 13
were acquired by the plaintiff Dasappa under Sale Deed
dtd. 21.03.1994 for Rs.20,000/- from Krishnappa and his
family members through their GPA and Sale Agreement
holder Smt. Nagarathanamma i.e., wife of Plaintiff -
Dasappa.
12. All these three suits have been clubbed and
common evidence has been recorded. On behalf of the
plaintiffs, Dasappa has been examined as PW.1 and his son
D.Gangadhar has been examined as PW.2. Plaintiffs have
got marked Ex.P.1 to 55 on their behalf. Details of the Sale
25
OS No.25133, 25134
& 25137/2007
Deed documents and revenue documents marked in
respect of suits are as below:-
Sale Transaction pertaining to Site No.24 in OS No.25133/2007
Date Executed by In favour of Nate of Exhibit
document
24.10.1996 Krishnappa and Dasappa Sale Agreement Ex.P.1
family
24.10.1996 Krishnappa and Dasappa GPA Ex.P.2
family
15.12.1997 Krisnappa & Family Nagarathnamma Sale Deed Ex.P.3
through GPA Holder
Dasappa
09.09.1996 Krishnappa & Dasappa Agreement Ex.P.4
Family (Except (Settlement
All site owners & Agreement)
defendant No.1)
24.10.1996 Krishnappa & Dasappa Affidavit Ex.P.5
Family (Except
defendant No.1)
Revenue and other allied documents relied on by the plaintiffs
pertaining to Site No.24 in OS No.25133/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.6-7
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.11-
under the Self Assessment Scheme along with the Tax paid receipts for 20
26
OS No.25133, 25134
& 25137/2007
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.21
Sale Transaction pertaining to Site No.15 in OS No.25134/2007
Date Executed by In favour of Nate of Exhibit
document
24.10.1996 Krishnappa and Dasappa Sale Ex.P.1
family Agreement
24.10.1996 Krishnappa and Dasappa GPA Ex.P.2
family
15.12.1997 Krisnappa & Family Nagarathnamma Sale Deed Ex.P.23
through GPA Holder
Dasappa
09.09.1996 Krishnappa & Dasappa Agreement Ex.P.4
Family (Except All (Settlement
site owners and Agreement)
defendant No.1)
24.10.1996 Krishnappa & Dasappa Affidavit Ex.P.5
Family (Except
defendant No.1)
Revenue and other allied documents relied on by the plaintiffs
pertaining to Site No.15 in OS No.25134/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.24
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.25-
under the Self Assessment Scheme along with the Tax paid receipts for 34
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 06.01.2007 Ex.P.35-
36
Sale Transaction pertaining to Site No.7 and 13 in OS No.25137/2007
27
OS No.25133, 25134
& 25137/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and Nagarathnamma GPA Ex.P.37
family
14.12.1988 Krishnappa and Nagarathanamma Unregistered Ex.P.38
family Sale Deed
21.03.1994 Krisnappa & Family Dasappa Sale Deed Ex.P.39
through GPA Holder
Nagarthnamma
24.10.1996 Krishnappa & Dasappa Affidavit Ex.P.40
Family (Except
defendant No.1)
Revenue and other allied documents relied on by the plaintiffs
pertaining to site No.7 and 13 in OS No.25137/2007
Particulars of document Exhibit
Assessment Form-3 issued by the Bommanahalli Ex.P.41
Nagarasabha, Bengaluru
Application submitted by the plaintiff for the payment of the Ex.P.42-
taxes under the Self Assessment Scheme along with the Tax 51
paid receipts for the years 2002-03, 2003-04, 2004-05, 2005-06,
2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 06.01.2007 Ex.P.52 &
53
13. Defendants claim that their father Krishnappa
and themselves have not executed any Sale Agreement
and General Power of Attorneys and in the same breath
28
OS No.25133, 25134
& 25137/2007
they claim that the Power of Attorney given to the plaintiffs
and others parties mentioned above have been canceled
by the defendant No.1 and his father Krishnappa and
hence they had no authority to deal with the same in any
manner. They have also contended that Krishnappa and his
children have no independent right to enter into any
Agreement or to execute General Power of Attorney and
there was no layout formed in the land bearing Survey
Number-42 as claimed by the plaintiffs and therefore the
suit schedule sites are not in existence and sale deeds
registered in the name of the plaintiffs are in respect of
non existing property and as on the date of the Regd. Sale
Deed and also on the date of filing the written statement
there were no houses in existence in the suit property.
Plaintiffs in the above suits might have misused the
signatures of late Krishnappa and Defendants 2 and 3. The
29
OS No.25133, 25134
& 25137/2007
Affidavit claimed by the plaintiffs have not been sworn to
by them. Plaintiffs were not in possession of the suit
property as on the date of the suit and there was a suit
between the defendant No.1 and his father Krishnappa in
OS No.8415/1996 in the Court of Addl. City Civil Court,
Bengaluru and the same was compromised on 07.12.2006
and they have partitioned the said land and other lands as
per the Sketch annexed to the compromise petition filed in
the said suit. Defendants claim that even to this day the
suit property is agricultural land and plaintiffs have filed a
false suit without possession of the suit land.
14. It is the case of the plaintiffs that after instituting
the suits, defendants have put up the construction in the
suit property and therefore the plaintiffs who had
originally filed the suit for permanent injunction have got
30
OS No.25133, 25134
& 25137/2007
amended the plaint and sought the relief of mandatory
injunction for removal of the construction and for
possession by contending that even though interim order
of injunction was in force and later same had been
modified into an order of status quo by the High Court of
Karnataka, Bengaluru, in violation of the same, the
Defendants have put up said constructions during the
pendency of the suit. Defendants have filed additional
written statement denying the constructions of any
building after institution of the suit.
15. On behalf of the defendants defendant No.1 has
got himself examined as DW.1 and got marked Ex.D.1 to
D.52 documents. Details of the said documents are as
below:-
Ex.D.1-2 Certified copy of the Encumbrance
Certificates
31
OS No.25133, 25134
& 25137/2007
Ex.D.3-5 Certified copy of the RTC
Ex.D.6 Certified copy of the compromise petition
in OS No.8415/1996
Ex.D.7 Certified copy of the final decree in OS
No.8415/1996
Ex.D.8 Certified copy of the Layout plan
Ex.D.9 Encumbrance Certificate
Ex.D10 Mutation Register Extract
Ex.D.11-12 RTC
Ex.D.13-14 Certified copy of the Tax receipts
Ex.D.15-16 Encumbrance Certificates
Ex.D.17 Certified copy of the tax receipts
Ex.D.18 Certified copy of the Affidavit
Ex.D.19 Copy of the notice issued to the plaintiff
Ex.D.20 Copy of the notice issued to K.Ramaiah
Ex.D.21-22 Postal receipts
Ex.D.23 Certificate of Posting
Ex.D.24-25 Postal acknowledgment
Ex.D.26 Copy of the caveat petition
Ex.D.27 Certified copy of the Order sheet in RFA
32
OS No.25133, 25134
& 25137/2007
No.1022/2007
Ex.D.28 Death Certificate of Krishna Reddy
Ex.D.29-30 Revocation of Power of Attorney
Ex.D.31 Certified copy of the Final Decree in OS
No.8415/1996.
Ex.D.32 Copy of Form 'B' Property Register
Ex.D.33 Copies of Tax paid receipts
Ex.D.34-35 Copy of the Final decree in OS
No.8415/1996 dtd. 14.02.2007
Ex.D.36 Copies of the Record of Rights in respect
of Survey Number-42/1
Ex.D.37 Copy of Katha Certificate. Dtd. 27.12.2013
Ex.D.38 Copy of Form 'B' Register
Ex.D.39 Copy of Katha Registration notice dtd.
18.12.2013
Ex.D.40 Copies of Tax paid receipts
Ex.D.41 Copy of the Final decree in OS
NO.8415/1996
Ex.D.42 Copies of 5 RTC
Ex.D.43 Copy of the Encumbrance Certificate
Ex.D.44-46 Certified copy of Form 'A' under RTI Act
with IPO counter files
33
OS No.25133, 25134
& 25137/2007
Ex.D.47-49 Endorsements issued by BBMP
Ex.D.50 Certified copy of the written statement in
OS No.8415/1996
Ex.D.51 Certified copy of the deposition of RW.1 in
OS No.8415/1996
Ex.D.52 Certified copy of the deposition of PW. 1In
OS No.8415/1996
Since it is an admitted fact that earlier the suit land
bearing Survey Number- 42 belonged to the defendants
father Krishnappa and he had acquired the same under a
Partition Deed between himself and his brothers, above
said documents produced by the defendants are not of
much consequence. The R.T.Cs. have been produced by the
defendants to show that the suit property had been
entered in their name and the same is as per the Decree
granted in the Partition suit in OS No.8415/1996. They have
also produced certified copy of the Decree in the said suit.
34
OS No.25133, 25134
& 25137/2007
Further, they have produced certified copy of an affidavit
which is said to have been sworn to by Krishnappa as per
Ex.D.18 and copies of the legal notices as per Ex.D.19 and
20, revocation deeds of General Power of Attorney as per
Ex.D.29 and 30, copy of the caveat petition, final decree
and pleading in OS No.8415/1996 as per Ex.D.7. They have
produced layout plan in respect of land bearing Survey
Number- 42/P5 as per Ex.D8. Ex.D19 and 20 are the copies
of the legal notices dtd. 23.03.1995 issued by defendant
No.1 to the plaintiff Nagarathnamma and another
K.Ramaiah. Under the said notices, defendants claim that
they have canceled the General Power of Attorney that
had been given. The notice at Ex.P.19 read as below:-
"Under instructions from my client Sri K. Gopala, son
of Krishnappa, residing at No.5, I Cross, Srishaila Nilaya,
Venkataramaiah Layout, Ramamurthynagar, Main Road,
Doddabanaswadi, Bangalore 43, I cause this notice to you as follows:-
1. My client informs me to state that at the instance of
his father, my client's aunt viz., Papamma and her six children have
35
OS No.25133, 25134
& 25137/2007
executed a Power of Attorney on 14/'16-12-1998 touching the site No.
7 and 13 of Aralakunte village, Begur Hobli, Bangalore South Taluk,
formed in Survey No.42 measuring East to West 30 feet and North to
South 40 feet to manage and supervise the same.
2. My client further states that he was under the terms and dictates
of his father was forced to sign the said power of of attorney among
others jointly. He further states that his sisters viz., Bharati, Roopa
and brother Manjunatha were the minor as on that date, and they
were not duly represented by natural guardian. My client's brother
and sisters being minor shall no contractual capacity. hence, they
can't be termed as executants of the documents stated supra. The so
called minors including my client were under the terms and dictates
of their father. The signature of my client and his sister Rukkamma
and step mother Papamma were obtained by exercising the undue
influence My client further states that is there is no consensuses ad-
idem to execute the general power of attorney in your favour to act
as an agent of my client to carry out the work as stated in the General
Power of Attorney stated supra, touching the property mentioned
therein. That as per my client's instructions and as per the grounds
stated above, I hereby revoke the General Power of Attorney
executed in your favour on 14/16-12-1988 touching the site Nos. 7
and 13 formed in Survey No. 42 Aralakunte village, Begur Hobli
Bangalore South Taluk.
Therefore, I hereby revoke the General Power of
Attorney executed in your favour and further call upon
you not to act on the strength of the Power of Attorney dated 14/16-
12-1988, touching the aforesaid site No.7 and 13 inspite of this
notice, if you proceeded further, your actions will not be bind on my
client in any manner".
Ex.P.20 notice is issued with the same content to one
K.Ramaiah (not a party to this suit ) in respect of Site
No.24.
36
OS No.25133, 25134
& 25137/2007
It is the contention of the plaintiffs counsel that the
above said legal notices issued by defendant No.1 itself
shows that the General Power of Attorney documents
produced by the plaintiffs had indeed been executed by
Krishnappa and his family members. In fact, the contents
of the above legal notices and also averments in the
written statement show that the same admit the fact that
Krishnappa and his family members had executed Sale
Agreements and General Power of Attorneys in question.
But, the defendant No.1 claims that he was forced to sign
the said Power of Attorney jointly with other family
members. He further contends in the legal notice that his
sisters Bharathi, Roopa and brother Manjunath were
minors as on that date and they were not duly represented
by their natural guardian and therefore, the General Power
of Attorney claimed by the plaintiffs are illegal. Hence the
37
OS No.25133, 25134
& 25137/2007
above said contention of the defendants in the written
statement and also legal notices at the outset show that
Krishnappa and his family members had executed the Sale
Agreements and General Power of Attorney as claimed by
the plaintiffs. Now burden rests on the defendants to
prove that the Power of Attorney was obtained by
coercion. Therefore, the evidence will have to be verified to
find out if the defendant No.1 has proved that his
signatures to the General Power of Attorney in question
were obtained forcibly by his father. Further, said
contention of the defendants in the legal notice implies
that defendants father Krishnappa had voluntarily
executed the General Power of Attorney and it is the case
of the defendants that only defendant No.1 was forced by
his father to sign the GPA jointly along with other family
members. Hence, from the contention taken in the legal
38
OS No.25133, 25134
& 25137/2007
notices of the defendants, it is clear that the defendants
father had voluntarily executed the General Power of
Attorney. Now, it has only to be verified whether the
signatures of the defendant No.1 had been forcibly
obtained to the General Power of Attorneys in question.
16. Ex.D.19 and 20 have been issued by defendant
No.1 alone. The plaintiffs have contended that defendant
No.1's father and his brothers and sisters had not
authorized him to issue the said legal notices. In view of
the said contention, defendants have produced Ex.D.18
affidavit purportedly to have been executed on 25.02.1995
to show that his father and other family members have
authorized him to cancel the Power of Attorney documents
in question. Plaintiffs counsel has argued that the same
has been concocted in order to fill up the lacuna in the
legal notices wherein it is clearly mentioned that defendant
39
OS No.25133, 25134
& 25137/2007
No.1 alone has issued the same to the plaintiffs. In this
backdrop, I proceed to consider whether the General
Power of Attorneys on the basis of which the Sale Deeds
have been got registered had been duly canceled by the
defendants and their family members prior to the plaintiffs
obtained the Regd. Sale Deeds on the strength of the said
General Power of Attorneys. Of-course, plaintiffs counsel
argues that the Sale Agreements and General Power of
Attorney had been executed by receiving the sale
consideration and therefore the General Power of Attorney
in question were coupled with interest and hence the
defendants could not have canceled the General Power of
Attorneys. General Power of Attorneys were irrevocable
and the notices issued as per Ex.D.19 and 20 have no value
in the eye of law. As a matter of fact Ex.D.29 and 30 are
the Deeds of Revocation of General Power of Attorney
40
OS No.25133, 25134
& 25137/2007
unilaterally executed by defendant No.1 on 23.03.1995,
revoking the GPA in favour of Nagarathnamma and
K.Ramaiah in respect of suit Nos.7 and 13 and 24
respectively. Plaintiffs have got sale deeds marked at Ex.P.3
and 23 on 15.12.1997 i.e., subsequent to the legal notice
marked at Ex.D.19 and 20 and Ex.P.39 Sale Deed on
21.03.1994 prior to legal notice. Of course, when the
plaintiffs obtained the Regd. Sale Deed dated.15.12.1997
and 21.03.1994, defendants father was still alive and
defendants have produced the death certificate of their father as
per Ex.D.45 which shows that he passed away on 07.12.2006 which is
just prior to filing of this suit. Ex.P.1 and 2 in respect of Site
Nos.15 and 24 are said to have been entered into
subsequent to Ex.P.19 and 20 legal notices.
17. In this connection, evidence of Defendant No.1/
D.W.1 requires to be noted. During cross examination on
41
OS No.25133, 25134
& 25137/2007
pages-7 and 8 he admits that he had issued Legal notice to
the plaintiffs canceling the General Power of Attorney that
had been executed in their favour. At pages-7 and 8 of his
cross examination, he states that since some one inquired
him about one Krishnappa and handed over the Power of
Attorney stated to have been executed by the said
Krishnappa, he handed over the copy of the said G.P.A. to
his advocate and asked him to issue notice to the plaintiffs.
On one hand he states that he and his father Karishnappa
and other members together got the G.P.A. canceled and
on the other hand, he states that some one enquired him
about the General Power of Attorney executed by
Krishnappa and handed over the copy of the same and
hence he in turn gave it to his counsel and got the GPA
canceled. Defendant No.1/D.W.1 has not made any effort
to explain what force was used by his father to make him
42
OS No.25133, 25134
& 25137/2007
to affix his signatures to the Sale Agreement and GPAs. in
question. Instead he has sought to give dubious
explanation for the same by stating that he issued notice
because someone inquired with him about the General
Power of Attorney executed by Krishnappa and handed
over a copy of the same to him. If his father had forced
him to affix his signature to the documents and there was
a suit for partition filed by him against his father then how
they together issued the legal notice canceling the General
Power of Attorney demands an answer, that too, when in
the said suit defendant No.1 to 3 and their father and
other family members have all entered into a compromise
and obtained a compromise decree. Importantly, burden is
on the defendants to prove that the signatures of the GPA
had been obtained by forcing to affix the signatures. But,
43
OS No.25133, 25134
& 25137/2007
defendants have not produced any plausible or cogent
evidence to accept the said contention.
18. On page 14 of his cross examination, he admits
that Ex.P.37 (a to e) are his signatures in Ex.P.37 and then
states that he cannot identify his father's signature. Again
he admits that in Ex.P.38, he has affixed signature as per
Ex.P.38(a) to (d). His statement on page-14 is as follows:-
"Signatures in Ex.P.37(a), Ex.P.37(b), Ex.P.37(c),
Ex.P.37(d), Ex.P.37(e) in Ex.P.37 are my signatures. I
cannot identify the signature of my father. It is not true
to suggest that my family members have signed Ex.P.37.
In Ex.P.38, Ex.P. 38(a) , Ex.P. 38(b) , Ex.P. 38(c) and Ex.P.
38(d) are my signatures. I know reading Kannada".
In the legal notice he has admitted affixing his
signatures and has stated that he is canceling the G.P.A. on
the ground that his signatures were obtained forcibly.
Burden being on the defendants to prove that the
44
OS No.25133, 25134
& 25137/2007
signatures had been taken forcibly to the documents,
defendants have not produced any cogent material before
the court to accept the said contention. On the other
hand, evidence above clearly shows that defendant No.1
has affixed his signatures to Ex.P.37 and 38-sale
agreements and General Power of Attorneys dtd.
14.12.1988 executed in favour of the plaintiff
Nagarthnamma in respect of site Nos.7 and 13. However,
in respect of Site Nos. 15 and 24 in Sale Agreement at
Ex.P.1 dtd. 24.10.1996 and GPA at Ex.P.2 dtd. 24.10.1996,
defendant No.1 has not affixed signature and also Ex.P.1-
Sale Agreement is inchoate and the sale consideration is
not mentioned and on page-3 of the Sale Agreement,
blank space is left for mentioning the sale consideration. In
General Power of Attorney at Ex.P.2 also sale consideration
is not mentioned.
45
OS No.25133, 25134
& 25137/2007
19. Plaintiffs counsel has placed reliance on a number
of decisions to contend that the General Power of Attorney
having had been executed by receiving sale consideration
same were coupled with interest and executants had no
power to revoke the said G.P.As. Learned counsel for the
plaintiffs has placed reliance on the decisions in Suraj
Lamp Industries Vs. State of Haryana; Hardip Kaur Vs.
Kailash and another to buttress the point. Learned
counsel for plaintiffs has also relied on section 202 of the
Indian Contract Act, 1872 and Sec. 53-A of the Transfer of
Property Act, 1882. Sale Agreement marked at Ex.P.38
which is dated 14.12.1988 shows that under the said Sale
Agreement entire sale consideration has been received by
the executants. Under the above said Sale Agreement
(unregistered Sale Deed) at Ex.P.38, in respect of each site,
sale consideration has been fixed at Rs.10,000/- and same
46
OS No.25133, 25134
& 25137/2007
is shown to have been entirely paid and received. Said
documents have been executed by the defendants father
Krishnappa and his first wife's only son - defendant No.1,
his second wife Papamma and her children Rukkamma,
Rajamma, Muniraju (defendant No.2) and Manjunatha
(Defendant No.3); Bharathi and Roopa. Among them
defendant Nos.2 and 3 and their sisters Bharathi and
Roopa have been shown as minors and they have been
represented by their father Krishnappa in the said
documents. Sale Agreement contain recitals that sites have
been formed in the land bearing Survey Number- 42 of
Arulukunte village measuring 1 Acre 16 guntas and in view
of the difficulty faced by them for meeting domestic
necessities, protection of minor children and their
educational expenses they are selling the sites formed in
the layout in the above land. Apart from the same, later in
47
OS No.25133, 25134
& 25137/2007
view of the dispute by the children of the second wife, an
Agreement has been entered into as per Ex.P.4 on 9.9.1996
(date wrongly typed as 9.9.1966 in Ex.P.4), Affidavit has
been executed on 24.10.1996 by Krishnappa, his 2 nd wife
Papamma and her sons-Defendant Nos.2 and 3, Daughters
Bharathi and Roopa. At the time of execution of the
affidavits, defendants 2 and 3 and Bharathi had become
majors and their sister Roopa was still a minor and she has
been represented by her father Krishnappa. In the said
affidavit they have confirmed that they have sold sites in
question as per Sale Agreement and General Power of
Attorneys executed by them and they have also ratified
the Sale deeds got registered on the basis of the G.P.As and
have also admitted delivery of vacant possession of the
sites to the purchasers and have stated No objection for
change of Katha in favour of the purchasers under the sale
48
OS No.25133, 25134
& 25137/2007
deeds executed by virtue of the General Power of Attorney.
Defendants 2 and 3 who are the signatories to the Affidavit
have not chosen to enter the witness box to deny their
signatures therein. In the Affidavit dtd. 24.10.1996 and
Agreement dtd. 9.9.1996 defendant No.1 is not a party.
Therefore, I am of opinion that even the above said
affidavit has been proved.
20. In these suits relief of declaration of title has not
been sought and the defendants counsel has placed
reliance on the decision in the case of Anathula
Sudhakara Vs. P.Buchi Reddy (Dead) by L.Rs. Reported
in AIR 2008 S.C.2033 to contend that in the absence of
seeking the relief of declaration of title in the light of
serious dispute regarding the title of the plaintiff to the
suit, the above suit itself is not maintainable. In fact,
49
OS No.25133, 25134
& 25137/2007
plaintiffs counsel has also placed reliance on the said
decision to contend that when the title on the face of
records is clearly established, need for seeking declaration
of title does not arise and also if plaintiffs can establish
possession of the property independently, then also need
for seeking the relief of declaration of title, does not arise.
Learned counsel for the plaintiffs has also argued that
plaintiffs would be entitled to protect their possession of
the suit property under section 53A of the Transfer of
Property Act as they had been put in possession by
receiving entire sale consideration and therefore,
irrespective of question of title plaintiffs are entitled to
possession of their sites under the said provision.
21. Learned counsel for defendants has placed
reliance on the decision in U.Vijaya Kumar Vs.
50
OS No.25133, 25134
& 25137/2007
Malini.V.Rao reported in ILR 2016 Kar. 2670 to argue
that without the consent of the Principal, agent could not
have dealt on his own account and the Principal may
repudiate the transaction. Said proposition is at para-6 of
the said decision. Said principle has been stated in relation
to the transaction where material facts have been
dishonestly concealed by the Agent and advantage has
been taken of by the Agent. In this case, material discussed
show that by receiving the entire sale consideration Sale
Agreements and General Power of Attorneys as per Ex.P.37
and 38 were executed along with affidavit. Therefore, same
had created interest in favour of the Agreement holders-
cum-General Power of Attorney Holders and hence above
decision does not aid defendants case in the face of Sec.
202 of the Indian Contract Act, in so far as Ex.P.37 and 38
are concerned.
51
OS No.25133, 25134
& 25137/2007
22. Learned counsel for defendants has relied on a
decision in Kewal Krishan Vs. Rajesh Kumar and ors,
DD 22.11.2021 in Civil Appeal No.6989-6992/2021 and
drawn attention to the proposition laid down at para-15 of
the said decision. Said decision lays down the Law with
respect to non payment of Sale price and its consequences.
But, in this case, Sale Agreement at Ex.P.38 clearly shows
that entire sale consideration was paid thereunder and
subsequently when again dispute arose from the side of
the second wife and children of Krishnappa, a settlement
has been reached and Affidavits have been sworn to by
reaffirming the sale of the suit sites by expressing no
objection for getting the katha changed in their names.
Hence, above decision also do not apply to the facts of
these cases which are under consideration, in so far as Site
Nos.7 and 13 covered under Ex.P.37 and 38.
52
OS No.25133, 25134
& 25137/2007
23. As regards the possession of the plaintiffs is
concerned, Learned counsel for defendants has relied on a
decision in the case of Vasudev and Ors. Vs. Tukaram
Bhimappa Naik and ors., reported in ILR 2014 Kar.
4716 to contend that entries in revenue records are still in
the name of defendants and since the suit property is
agricultural land,said entries have significance and
therefore, plaintiffs case that they are in possession of the
suit property cannot be accepted. Even though the entries
in revenue records are entitled to presumption under
section 133 of the Karnataka Land Revenue Act, they are
rebuttable in nature. Admitted facts in the Sale
Agreements that layout of residential sites was formed and
sites were sold to the purchasers thereunder shows that
although no order for conversion of the land for non
agricultural use was taken, defendants family has formed
53
OS No.25133, 25134
& 25137/2007
sites in the revenue land and sold same to various persons.
There is clear recital in the Sale Agreements and also later
affidavits, about handing over of possession of the suit
schedule sites to the purchasers. Same clearly rebuts
presumption which were available in respect of the entires
in favour of defendants. Hence, said contention also falls
on ground.
24. Defendants counsel has placed reliance on a
decision in the case of Jitendra Singh Vs. State of
Madhya Pradesh and Ors, reported in 2021(2)
Kar.L.R.477 (SC) with respect to revenue entries. Here, in
this case, title is not being considered on the basis of the
revenue entires. Admittedly, suit property originally
belongs to Kirshnappa who is the father of defendants, he
having had acquired it under the family partition. But
54
OS No.25133, 25134
& 25137/2007
thereafter, defendants family has formed a layout of
residential sites and sold the sites to third parties including
the plaintiffs. They have executed unregistered General
Power of Attorney and on the strength of the same, in
turn they have among themselves executed Sale Deeds and
all the plaintiffs in these cases are members of the same
family. In the case of Rajni Tandan vs.Dulal Ranjan
Ghosh Dastidar, in Civil Appeal No.4671/2004, the
Apex court has held that even though the sale deed has
been executed on the basis of an unregistered General
Power of Attorney yet when same is executed by General
Power of Attorney Holder in his independent right, mere
fact that General Power of Attorney was unregistered
document does not prevent transfer of title. Apex court has
explained the reason for expecting documents to be
registered by highlighting that same is to safeguard the
55
OS No.25133, 25134
& 25137/2007
interest of the contracting parties and to prevent
fraudulent transactions, the ratio laid down in Rajni
Tandon case as reflected in the head note and excerpts
thereunder is as follows:-
".A. Registration Act, 1908 - Ss. 33(1) and 32 -
Presentation by exccutant of document on the basis of an
unregistered power of attorney - Compulsory registration
of power of attorney under S. 33 - When and to whom
applicable - No allegation of fraud -- Effect - Vendor
principal authorizing agent to execute a sale deed on the
basis of an unregistered power of attorney (only
notarized) - Agent (power-of-attorney holder) executing
sale deed - Thereafter agent presenting sale deed for
registration on the basis of the same unregistered power
of attorney - Legality - Compulsory registration of power
of attorney of an agent presenting a document for
registration, held, would have been mandatory only if
power- of-attorney holder (agent) presenting the
document would not have been the executant As the
power-of-attorney holder was the executant of the
document, held, he was also legally competent to present
the document for registration - Object of Registration Act,
1908 being to prevent fraud, and no allegation of fraud
since made, the registration, held, was proper B.
Registration Act, 1908 - Object of, held, is designed to
guard against fraud by obtaining a contemporaneous
publication and an unimpeachable record of each
document The High Court by the impugned order in
second appeal, held, that the sale deed in favour of the
appellant-plaintiffs was not properly registered. The High
56
OS No.25133, 25134
& 25137/2007
Court held that since the power of attorney was
admittedly, not a registered document and was simply
notarized, 1, power-of-attorney holder who executed and
signed the document on behalf of N, could not have
presented the document for registration in view of
Sections 32 and 33(1)(a) of the Registration Act, 1908
Allowing the appeal, the Supreme Court
Held: Section 33 will come into play only in cases where
presentation is in terms of Section 32(0) of the
Registration Act, 1908. In other words, only in cases
where the person(s) signing the document cannot present
the document before the registering officer and gives a
power of attorney to another to present the
document that the provisions of Section 33 get
attracted. It is only in such a case, that the said power of
attorney has to be necessarily executed and
authenticated in the manner provided under Section
33(1)(a) of the Registration Act. Where a deed is executed
by an agent for a principal and the same agent signs,
appears and presents the deed or admits execution
before the registering officer, that is not a case of
presentation under Section 32(c) oft f the Act. (Paras 33
and 27) D. Sardar Singh v. Seth Pissumal Harbhagwandas
Bankers, AIR 1958 AP 107; Abdus Samod v. Majiran Bibi,
AIR 1961 Cal 540 overruled Motilal v, Ganga Bal, AIR 1915
Nag 18; Gopeswar Pyne v. Hem Chandra Bose, AIR 1920
Cal 316; Aisha Bibi , Chhaiju Mal, AIR 1924 All 148; Sultan
Ahmad Khan V. Sirajul Haque, AIR 1938 All 170; Ram
Gopal L Mohan Lal, AIR 1969 Punj 226; Goswami
Malli Vahuji Maharaj v. Purushottam Lal Poddar, AIR 1984
Cal 297, referred to In this cause, the presentation is by
the actual executant himself who had signed the
document on behalf of the principal and therefore, the
agent/power-of- attorney holder is entitled under Section
32(a) to present it for registration and to get it registered
even though the power of attorney was not a registered
57
OS No.25133, 25134
& 25137/2007
document and only notarized. In the facts of the present
case, it is quite clear that I was given the full authority by
N under the notarized power of attorney to transfer the
The suit property and to execute the necessary
document. It is an accepted position that the transfer
deed was executed by / in the name and on behalf of N
thereof. Therefore, for the purposes of registration office
under Section 32(0), 1 is clearly the "person executing the
document. The plea taken by the respondents that in
order to enable / to present the document it was
necessary that he should hold a power of attorney
authenticated before the Sub-Registrar under the
provisions of Section 33 is not tenublons per the language
of Section 32 (Paras 34 and 28) The object of registration
is designed to guard against fraud by obtaining a
contemporaneous publication and an unimpeachable
record of each document. The instant crise is one where
no allegation of fraud has been raised. In view thereof the
duty cast on the registering officer under Section 32 of
the Act was only to satisfy himself that the document was
executed by the person by whom it purports to have been
signed. The Registrar upon being so satisfied and upon
registration of the same being presented with a
document to be registered had tightly to proceed with the
(Para 29)26. We have merely drawn attention to and
reiterated the well-settled legal position that SA/GPA/WIL
In a much subsequent decision in the case of Suraj
Lamp Industries Pvt. Ltd. Vs. State of Haryana (2012)
1 SCC 656 the Apex court has though laid down that an
end should be put to the transactions of unregistered
58
OS No.25133, 25134
& 25137/2007
General Power of Attorney it has been held that the said
decision is not intended to affect the bona fide
transactions which have taken place heretofore. In Suraj
Lamp Industries Pvt. Ltd. Case, at para-26 and 27, it is held
as under:-
"26. We have merely drawn attention to and reiterated
the well-settled legal position that SA/GPA/WILL
transactions are not `transfers' or `sales' and that such
transactions cannot be treated as completed transfers or
conveyances. They can continue to be treated as existing
agreement of sale. Nothing prevents affected parties
from getting registered Deeds of Conveyance to
complete their title. The said `SA/GPA/WILL transactions'
may also be used to obtain specific performance or to
defend possession under section 53A of TP Act. If they
are entered before this day, they may be relied upon to
apply for regularization of allotments/leases by
Development Authorities. We make it clear that if the
documents relating to `SA/GPA/WILL transactions' has
been accepted acted upon by DDA or other
developmental authorities or by the Municipal or
revenue authorities to effect mutation, they need not be
disturbed, merely on account of this decision.
27. We make it clear that our observations are not
intended to in any way affect the validity of sale
agreements and powers of attorney executed in genuine
transactions. For example, a person may give a power of
attorney to his spouse, son, daughter, brother, sister or a
relative to manage his affairs or to execute a deed of
59
OS No.25133, 25134
& 25137/2007
conveyance. A person may enter into a development
agreement with a land developer or builder for
developing the land either by forming plots or by
constructing apartment buildings and in that behalf
execute an agreement of sale and grant a Power of
Attorney empowering the developer to execute
agreements of sale or conveyances in regard to
individual plots of land or undivided shares in the land
relating to apartments in favour of prospective
purchasers. In several States, the execution of such
development agreements and powers of attorney are
already regulated by law and subjected to specific stamp
duty. Our observations regarding `SA/GPA/WILL
transactions' are not intended to apply to such
bonafide/genuine transactions"
Hence, considered in the light of the above said decisions,
though this is not a suit for declaration of title it cannot be
said that the plaintiffs have not derived ownership to the
suit proprieties, particularly under Ex.P.37, GPA and Ex.P.38
Sale Agreement and Ex.P.39 Sale Deed dtd. 21.03.1994.
Moreover, the Sale Agreement and Affidavit executed in
favour of plaintiffs clearly show that possession of the suit
60
OS No.25133, 25134
& 25137/2007
schedule sites had been handed over thereunder by
receiving entire sale consideration.
25. Of-course, Ex.P.1-Sale Agreement is inchoate and
it is not a contemporaneous document, and it is entered
into, subsequent to the dispute had arisen and hence, for
the sake of caution, transaction under Ex.P.1 Sale
Agreement and Ex.P.2 GPA relating to site Nos.15 and 27
may be rejected. I have further considered cross
examination of Pws.1 and 2 in the case. P.W.1 states that
Papamma (2nd wife of the defendants father) signed in his
presence, but actually she has put LTM. He states that only
after layout plan was shown, General Power of Attorney
was executed. When he was examined on 4.4.2009, he
has stated that even now suit property is vacant. He has
stated that now the defendants have leveled the land and
stored soil to make it appear as if there is no layout
61
OS No.25133, 25134
& 25137/2007
formed. He states that after leveling the land, layout
cannot be identified as per the layout plan. He states that
two roads had been formed in the layout. On page-20 of
the cross examination, to a question that all defendants
are in possession of entire 1 Acre 16 guntas land in Survey
Number-42, he has said yes and then denied that
plaintiffs are not in possession. PW.2 who is son of PW.1
is not a material witness. He has seen suit sites once, one
month before giving evidence. Whereas, evidence of PW.1
is credible. He has denied the suggestion that the suit
schedule sites as mentioned in the Sale Deeds are not in
existence. From the contention of the defendants in the
written statement as well as the legal notices caused by
the defendant No.1 and admissions elicited regarding
defendant No.1's signatures in Ex.P.37 and 38 during his
cross examination and his feigning ignorance regarding
62
OS No.25133, 25134
& 25137/2007
signatures of other parties such as his father and other
family members in the said documents clearly show that
the defendants father, defendant No.2 and other family
members have executed same. Point for consideration at
present is whether the plaintiffs have proved their
possession of the suit schedule property as on the date of
the suit. So, in the cross examination of Pws.1 and 2 there
is nothing which shows that the plaintiffs were not in
possession of the suit schedule property particularly site
Nos. 7 and 13 as on the date of the suit.
26. Now, in this circumstance, documentary evidence
discussed earlier will have to be considered. As already
held, plaintiffs have proved the Sale Agreement and
General Power of Attorney marked at Ex.P.37 and 38
executed in their favour. The said Sale Agreement clearly
63
OS No.25133, 25134
& 25137/2007
disclose that the entire sale consideration was received
and possession was handed over thereunder. Of-course,
they are unregistered Sale Agreement in the nature of Sale
Deed. On the basis of the unregistered Sale Agreement
possessary interest of course cannot be considered to have
passed in view of bar under section 49 of the Registration
Act. Yet, the GPA has been executed and the plaintiffs have
secured the Sale Deed on the basis of the said G.P.As. As
held in the case of Rajni Tandon by the Supreme Court,
purpose of registration is to safeguard the interest of the
parties. When the evidence clearly shows that there were
bonafide sale consideration and the possession of the
properties had been handed over to the purchasers that
too prior to later decision of the Apex court in Suraj Lamp
Industries case, which has prospective effect, I am of
opinion that the Sale Deed got registered by the plaintiffs
64
OS No.25133, 25134
& 25137/2007
on the basis of the unregistered GPA, a decade before the
said later proposition of law was laid down, requires to be
given effect to, considering equity, in as much as in the
later decision, observations can be found that the ratio was
not intended to apply to the previous bonafide
transactions. Further, even though the Sale Agreement is
unregistered and inadmissible under section 49 of the
Registration Act other than for specific performance, yet
the same can be considered for collateral purpose. In this
connection, a decision of Apex Court in the case of Bondar
Singh and others Vs. Nihal Singh and others reported
in (2003) 4 Supreme Court Cases-161 , at para-5 it is
held as under:-
"5. The main question as we have already noted is
the question of continuous possession of the plaintiffs
over the suit lands. The sale deed dated 9.5.1931 by
Fakir Chand, father of the defendants in favour of Tola
Singh, the predecessor interest of the plaintiff, is an
admitted document in the sense its execution is not in
65
OS No.25133, 25134
& 25137/2007
dispute. The only defence set up against said
document is that it is unstamped and unregistered
and therefore it cannot convey title to the land in
favour of plaintiffs. Under the law a sale deed is
required to be properly stamped and registered
before it can convey title to the vendee. However,
legal position is clear law that a document like the
sale deed in the present case, even though not
admissible in evidence, can be looked into for
collateral purposes. In the present case the collateral
purpose to be seen is the nature of possession of the
plaintiffs over the suit land. The sale deed in question
at least shows that initial possession of the plaintiffs
over the suit land was not illegal or unauthorized.
In this case, what is referred to as Sale Agreement (Ex.P.38)
is actually an unregistered Sale Deed. It can be looked into
for collateral purpose regarding passing of Sale
consideration, initial possession and also nature of
property. An acknowledgment of receipt of money does
not require registration. Hence, I am of the view that
based on the above discussed evidence, plaintiffs have
proved their possession of suit schedule site Nos. 7 and 13
as on the date of the suit. So far as site Nos. 15 and 24, in
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OS No.25133, 25134
& 25137/2007
view of inchoate sale agreement at Ex.P.1 and also as the
same is of the period subsequent to arising of dispute, for
the sake of caution, they are not accepted.
27. Now, question is whether the defendants have
put up construction in the suit property during the
pendency of the suit in violation of the interim order of
temporary injunction which was modified into an order of
status quo in MFA No.9684/2004 by the High Court of
Karnataka, Bengaluru. Defendants have contended that
during the later stage of the suit that the buildings in
question in the suit property were already existing before
institution of the suit. In other words they are denying
putting up the construction in violation of the interim
order of injunction/status quo. Learned counsel for the
plaintiffs has called attention of the court to the order
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OS No.25133, 25134
& 25137/2007
passed by this court on the plaintiffs interlocutory
application which had been filed under order 39 Rules 1
and 2 of the CPC thereby granting an order of temporary
injunction in their favour pending disposal of the suit.
Learned counsel for plaintiffs argues that while the said
I.As. were being heard, defendants counsel had made a
clear submission before the court that entire extent of 1
Acre 16 guntas of Survey Number- 42 is vacant land and
likewise suit schedule property is vacant site and no
construction is put up in the suit schedule property. Both
counsel had made said submission and the same has been
noted by my Predecessor in order dtd. 26.07.2007 passed
on I.A.No.I at para-8 of the said Order. Thus, at para-8 of
the said order dtd. 26.07.2007 this court has observed as
follows:-
68
OS No.25133, 25134
& 25137/2007
" As per the arguments advanced by both counsel land
measuring 1 acre 16 guntas of Survey Number- 42 is a
vacant land likewise, the suit property is a vacant site. No
construction put up in the schedule property."
The above observation made by my Learned
Predecessor while disposing off IA No.I shows that
defendants counsel while submitting arguments on the
above said I.As. had made submission that entire land
measuring 1 Acre 16 guntas in Survey Number- 42
including the suit schedule sites were vacant and no
construction had been put up in the property at that time.
In fact, said submission binds the defendants in as much
as same is pertaining to point of fact and not concession
given in regard to question of law. Further, even though in
all the Sale Deeds got registered by plaintiffs, there is
mention of existence of an old house/shed measuring one
square, it is evident that the same is mentioned for
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OS No.25133, 25134
& 25137/2007
registration purpose, as the suit sites were in agricultural
land and there was prohibition against registration of
revenue land sites. Therefore, said mention in sale deed
requires to be ignored.
28. That aside, in the original written statement filed
in all these cases which are similar, defendants have
specifically pleaded that even as on the date of filing the
written statement there was no house in the suit property.
Said contention of the defendants is on page-2, para-2 of
their written statement. Further, at para-2 of the written
statement they have pleaded that the suit land is still an
agricultural land. Besides, defendants have no where
contended in their original written statement about putting
up any construction or existence of any construction in the
suit schedule property as on the date of filing the written
70
OS No.25133, 25134
& 25137/2007
statement. In the addl. Written statement filed by them, it
is contended that their sisters are in occupation of a
portion of land bearing Survey Number- 42/P5 and
cowshed and other constructions were all existing prior to
filing of suit. Thus, they have pleaded that subsequent to
filing of the suit they have not put up any construction in
violation of the interim order of injunction/status quo.
29. This brings us to the report of the Court
Commissioner in the case. At the instance of the
defendants counsel court commissioner was appointed
who has conducted the local inspection and submitted his
report in OS No.25124/2007 and pursuant to the
objections filed to the same by the plaintiffs he has been
examined as C.W.1 and cross examined in the said case.
Ex.C.1 to C.12 have been marked through the Court
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OS No.25133, 25134
& 25137/2007
Commissioner. Ex-C.5 is the Spot mahazar drawn by him
and Ex.C.6 is his Report and Ex C.7/1 to 40 and C.8/1 to 20
are the Photographs taken by the Court commissioner of
the suit schedule property during the local inspection. Ex
C.9 and 10 are the C.Ds. of the said photographs. Ex C.12 is
the statement of objections filed by the plaintiffs to the
Commissioner's Report. The certified copies of the
deposition of Court Commissioner and Exhibits have been
produced in this case. There are totally 13 connected suits.
According to the Report of the Commissioner, to the west
of the entire property bearing Survey Number-42/P5 there
is a road and there is another road which runs from West
to East in between the building where name of 'K.Bharathi'
was written and Zinc sheet scraps covered dumps area in
the said Survey Number- 42/P5 land was found. The Court
Commissioner noted boundaries for the entire land and
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OS No.25133, 25134
& 25137/2007
existence of shed in the southwest corner with the name
written on its western wall 'K.Manjunatha Reddy' who is
defendant No.2 in this case. He has further noted that
next to the said shed on the northern side there was a wall
constructed with cement bricks without plastering and next
to the said wall there was another shed on the northern
side and western wall of the said shed wall also bear board
with name 'K.Manjunatha Reddy' i.e., defendant No.2 and
there is a big gate to the north of the said shed facing
western side and towards north of the said gate there are
zinc sheet covering lock of wall around compound and the
defendant No.2 K.Manjunatha Reddy opened the gate and
scrap materials had been dumped in the said place which
was fully covered by zinc sheet on the compound wall and
next to the said zinc sheet covered area on the north side
there is a road from west to east and behind scrap
73
OS No.25133, 25134
& 25137/2007
materials dumped area and south west wall mentioned
above there were cattle tied and dairy activity could be
seen and on the west side of the two sheds bearing the
name of 'K.Manjunatha Reddy' there was debris. Actually
the above said road runs from West to East on the south
west cattle shed was found and on the south west side of
the road referred above, sheet roof building had been
constructed with writing on its western wall as 'This house
belongs to K.Bharathi Survey Number- 42/P5' and towards
east of said building there is vacant land and there is
compound wall towards north of this vacant land and on
the compound wall on the eastern side after the building
of 'K.Bharathi' name of 'Roopa D/o Krishnappa' is written
and then towards east of the same compound wall another
name 'Padma D/o Krishnappa' was written. Court
commissioner states that a huge cow-dung was stored in
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OS No.25133, 25134
& 25137/2007
the said place and next to Bharathi's property till eastern
boundary it was vacant except for storage of cow dung. It
is further stated that towards north of the building referred
as 'K.Bharathi' there is compound wall and there is western
side road towards north having a curve and near the said
curve there was a wall on the northern side with a gate and
on the western wall there was writing 'This property
belongs to K.Gopal S/o Krishnappa Survey Number- 42/P5,
Aralukunte village' who is defendant No.1. There was no
agricultural activities on the land other than dairy activity
with the structures mentioned above in the above said
Survey Number land.
30. Above said report of the court commissioner
which has not been objected to by the defendants show
that as on the date of the said Commissioner conducted
75
OS No.25133, 25134
& 25137/2007
the local inspection on 12.01.2013 above said
constructions of sheds, compound walls and storage of
scrap material was found. In fact, photos of the same have
been produced by the Court Commissioner. Since it has
been held that the suit land was vacant as on the date of
the suit in view of the written statement pleadings and also
submissions made by both the counsels during hearing of
I.A.NO.I, which has been noted in the order dtd.
26.07.2007 by my learned Predecessor, court
commissioner's above said finding shows that the above
said constructions have been made subsequent to filing of
the suit. That too, when there was an interim order of
injunction/status quo in respect of the suit property.
Cumulative upshot is that temporary and some permanent
like constructions have been put up in the suit schedule
property subsequent to filing of the suit in violation of the
76
OS No.25133, 25134
& 25137/2007
interim order granted in the case. Order sheet shows that
on 6.2.2007 interim order of injunction was granted with
direction to the plaintiffs and defendants to maintain
status quo till disposal of the I.A. No.I, thereafter by order
dtd. 26.07.2007 order of temporary injunction to restrain
the defendants from interfering with plaintiffs possession
of the suit property till disposal of the suit was granted by
allowing IA No.I filed by the plaintiffs. Again in MFA
No.9684/2004 said order has been modified with a
direction to both the parties to maintain status quo.
Therefore, from the beginning of the suit there was interim
order of status quo/temporary injunction/status quo till
date. When such is the case, plaintiffs have established that
the suit lands were vacant as on the date of the suit. Now,
the court commissioner report shows that there are some
temporary and permanent structures put up in the suit
77
OS No.25133, 25134
& 25137/2007
schedule sites spreading over the entire land in Survey
Number-42/P5. Natural corollary is that the said
constructions have been put up subsequent to institution
of the suits in violation of the interim orders in force.
31. Further, in the cross examination of the Court
Commissioner Learned counsel for plaintiffs has
confronted some recent photographs of the suit schedule
properties as per Ex.P.114 to 117. When Ex.P.114 photo
was confronted, the Court Commissioner/C.W.1 has
admitted that the said phone pertains to the same
property which is in dispute and it was inspected by him.
But, then he has stated that when he inspected, nature of
the property was different from what is seen in the photo
confronted to as per Ex.P.114. Similarly, he has admitted
Ex.P.115 Photograph and Ex.P.116 Photo. He states that the
78
OS No.25133, 25134
& 25137/2007
Shed marked in Ex.P.116 was not existing when he
conducted the local inspection. So, same shows that
subsequent to the Court Commissioner conducted the
local inspection and submitted report, again constructions
have been made in the suit properties. Similarly in respect
of Ex.P.117 Photograph Court Commissioner has admitted
that when he conducted the local inspection there was zinc
sheet for the roof, but now same has been changed. He
admits that in his report he has wrongly mentioned the
sheet roof building on which name of K Bharathi is written
has to be situated on the south western side instead of
north western side. Evidence of Court Commissioner and
the above photographs which were admitted by him show
that not only after institution of the suit and passing of
interim order constructions have been put up in the suit
schedule property, but also even after court commissioner
79
OS No.25133, 25134
& 25137/2007
conducted the local inspection and submitted the report
further constructions have been put up. Though the
defendants claim that their sisters put up some
constructions, photographs taken by the Court
Commissioner show that on two sheds name of Defendant
No.2 K.Manjunatha Reddy had been written and on one
wall the name of first defendant is written. C.W.1/Court
Commissioner has not been cross examined by the
defendants counsel. Preponderance of evidence shows
that it is the defendants who have put up the construction
of the said buildings in the suit property as well as
remaining portion in Survey Number-42 of Aralukunte
village measuring 1 Acre 16 guntas. Since it is clearly
established that when the suit was filed entire land
measuring 1 Acre 16 guntas was vacant and an interim
order has been passed in favour of the plaintiffs
80
OS No.25133, 25134
& 25137/2007
immediately upon entering appearance by the defendants,
it is manifest that constructions have been put up and
subsequent to the granting of interim order of injunction
and status quo in respect of the suit property by the
defendants. In the written statement defendants have
claimed that the suit schedule property was still an
agricultural land as on the date of their filing the same.
But, the evidence of the Court Commissioner shows that
when he conducted the local inspection the suit property
did not have nature of agricultural land. Apart from that
already constructions had been put up. Whereas, while
submitting the arguments on I.A.No.I it has been recorded
that both counsels have made submissions that entire land
measuring 1 Acre 16 guntas in question was vacant as on
the said date.
81
OS No.25133, 25134
& 25137/2007
32. From the above said evidence, I am of opinion
that the plaintiffs have proved that they were in lawful
possession of the suit schedule site Nos.7 and 13 as on the
date of the suit. They have also proved that during the
pendency of the suit defendants have illegally put up Zinc
sheet shed, compound wall and stored scrap material in
the suit property. It is also established from the above
discussed evidence that the defendants have put up
further constructions as well as above constructions in
violation of the interim order/status quo granted in the
case. Consequently, Issue No.1 and Addl. Issue No.1 in
OS No.25133/2007 and OS No.25134/2007 are answered in
negative and OS No. 25137/ 2007 is answered in the
affirmative.
33. Issue No.2 in OS No.25133/2007, 25134/
2007 and 25137/2007:- Discussions made on Issue No.1
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OS No.25133, 25134
& 25137/2007
and Addl. Issue No.1 amply prove that the defendants have
interfered with the plaintiffs possession of the suit
schedule properties Site Nos.7 and 13. In respect of site
No.15 and 24 suit claim have been answered in negative.
Plaintiffs have proved that the suit schedule site Nos.7 and
13 had been sold under Sale Agreements and General
Power of Attorneys by handing over possession of the
properties to the purchasers and afterwards when some
dispute had arisen, parties reached a settlement and
executed Affidavits thereby swearing to the fact that the
said suit schedule sites have been sold to the plaintiffs by
executing the General Power of Attorneys and hence they
ratified the ownership of the respective plaintiffs in respect
of the suit schedule sites. In fact, Sale Agreements referred
to above are in the nature of unregistered sale deeds. They
have been executed as Sale Deeds along with the General
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OS No.25133, 25134
& 25137/2007
Power of Attorney, most probably due to prohibition of
registration imposed by the Government in respect of
revenue sites. But, even after entering into such
settlements defendants have not stopped their claim over
the suit property. Said fact itself shows that the defendants
were interfering with plaintiffs possession of the suit
schedule property. Therefore, plaintiffs have proved cause
of action for the suit. Consequently, Issue No.2 in OS
No.25133/2007, OS No.25134/2007 are answered in
negative and OS No.25137/2007 is answered in the
affirmative.
34. Additional Issue No.2 in OS No.25133/2007,
25134/2007, & 25137/2007:- Suit has been filed initially
for the relief of permanent injunction. Cause of action is
claimed to have occurred on 03.01.2007 when the
defendants tried to interfere with possession of the suit
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OS No.25133, 25134
& 25137/2007
schedule property. Suit has been filed in the same year.
Therefore, relief of permanent injunction sought in the
suit is within the period of limitation. So far as the relief of
mandatory injunction, it has been claimed by way of
amendment during the pendency of the suit. Plaintiffs have
sought the said relief following the defendants violating the
interim order of injunction and putting up the
constructions and changing the nature of the suit schedule
property. Hence, same is also within the period of
limitation. Defendants contention that suit is barred by
limitation has not been substantiated in any manner.
Consequently, Addl. Issue No.2 in OS No.25133/2007, OS
No. 25134/2007 and OS No.25137/2007 is answered in the
negative.
35. Additional Issue No.3 in OS No. 25133/2007,
25134/2007 & 25137/2007:- Defendants have contended
85
OS No.25133, 25134
& 25137/2007
that the court fee paid is insufficient. But, the suit is
originally filed for the relief of permanent injunction by
paying the requisite court fee of Rs.25/- by valuating the
suit under section 26(c) of the Karnataka Court Fees and
Suits Valuation Act. During the pendency of the suit,
defendants have put up constructions in the suit property
by violating the interim order of injunction/ status quo
granted in the case and hence, plaintiffs have sought the
relief of mandatory injunction. When the defendants have
violated the interim order of injunction/status quo and
changed the nature of the suit property, court is bound to
restore the suit property to its original status in order to
ensure justice. Therefore, said relief of mandatory
injunction sought for by the plaintiffs having arisen in view
of the defendants putting up constructions in violation of
the interim orders of injunction/status quo, Plaintiffs are
86
OS No.25133, 25134
& 25137/2007
not required to pay further court fee on the same. They are
not required to seek relief of possession separately. This is
settled position of Law. Therefore, contention of the
defendants that the court fee paid is insufficient cannot be
accepted. Consequently, Addl. Issue No.3 in OS
No.25133/2007, OS No.25134/ 2007 and OS No.
25137/2007 is answered in the negative.
36. Issue No.3 and Additional Issue No.4 in OS
No.25133/2007, 25134/2007 & 2513/ 2007:- To sum up
the cases, plaintiffs have proved that they have been put in
possession of the suit schedule property viz., site Nos. 7
and 13 (OS No.25137/2007) initially under the unregistered
Sale Agreement cum unregistered Sale Deed dtd.
14.12.1988. At the same time, General Power of Attorney
(unregistered) has been executed in respect of each site in
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OS No.25133, 25134
& 25137/2007
favour of the purchaser. In turn on the basis of the General
Power of Attorney executed by the defendants father,
Defendant No.1 and some of their family members-GPA
Holders cum unregistered Sale Agreement/Sale Deed
holders have executed Regd. Sale Deed in favour of the
respective plaintiff in OS No.25137/2007. Thereafter, the
defendants vendor's second wife's children have raised
dispute and then another Agreement dtd.09.09.1996 has
been entered into between the purchasers on one side and
defendants father Krishnappa, his second wife Papamma
and her children on the other side. In the said further
Agreement purchasers/ plaintiffs have agreed to make
additional payments to the defendants father, his second
wife and her children in a sum of Rs.3,35,000/- and out of
the same, Rs.30,000/- per site for 17 sites and Rs.5,000/-
per site for 7 sites . In the said agreement, purchasers have
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OS No.25133, 25134
& 25137/2007
agreed to pay additional amount on or before 9.11.1996
and it has further been agreed that if the vendors fail to
accept the said sum and to give letter to the competent
authority for transfer of katha, second party/purchasers
shall be at liberty to enforce the said Agreement by filing a
suit for Specific performance. It is the contention of the
defendants' counsel that as per the said term of the
Agreement dated 9.9.1996, plaintiffs ought to have filed a
suit for specific performance. Whereas, it is plaintiffs
counsels contention that subsequent to the said
Agreement the very same parties to the Agreement dtd.
9.9.1996 who are defendants father Krishanppa, his second
wife Papamma and her sons Defendants 2 and 3 and
daughters Bharathi and Roopa have sworn to the Affidavit
dtd. 24.10.1996. In this connection, plaintiffs counsel has
relied on a decision of Apex court in the case of
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OS No.25133, 25134
& 25137/2007
S.Chattanatha Karayalar Vs. The Central Bank of India
Ltd., reported in AIR 1965 Supreme Court 1856. In said
case at para-3, it is held as under:-
" The Principle is well established that if the transaction
is contained in more than one document between the
same parties they must be read and interpreted
together and they have the same legal effect for all
purposes as if they are one document ".
The above said affidavit has been sworn to within the
specified time mentioned in the Agreement dtd.9.9.1996.
In the said affidavit, deponents above have categorically
stated that they have sold the suit sites in question and
delivered the vacant possession of the sites and the
purchasers are enjoying the same without any trouble
from whomsoever and the deponents have no right over
the sites and they have no objection to transfer katha in
favour of the purchasers under the Sale Deed. In addition
to the same, in the said affidavit they state that they have
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OS No.25133, 25134
& 25137/2007
delivered rough plan pertaining to the suit schedule site for
identification. When the admitted signatures of the
defendant No.1 in the Sale Agreements and General
Power of Attorneys are taken into consideration and the
fact that the signatures of the defendants father
Krishnappa in the said documents is not in dispute is
taken into consideration and the admitted signatures of
the defendants father in the Sale Agreements and General
Power of Attorney are compared with the signatures of the
defendants father Krishnappa in the Agreement and
Affidavit dtd. 9.9.1996 and 24.10.1996, they clearly tally
with each other. Then defendant No.1 states he does not
know whether his father, his second wife and her children
have signed the documents in question, defendants 2 and
3 being signatories to the said Agreements were required
to enter the witness box and give evidence. Of-course, in
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OS No.25133, 25134
& 25137/2007
the Agreement Ex.P.6, Papamma is shown to have affixed
her signature. However, in other documents she has
affixed LTM. Similarly Defendant Nos.2 and 3 have signed
in Kannada Language, but in the Affidavit dtd 24.10.1996
they have affixed their signature in English language and
Papamma has also affixed her LTM and not put her
signature. Signature of Krishnappa in the admitted Sale
Agreement and GPA tally with the signatures attributed to
him in the Agreement dtd. 9.9.1996 and Affidavit dtd.
24.10.1996. Importantly, defendant Nos.2 and 3 ought to
have entered the witness box to deny the signatures
attributed to them in the affidavit dtd. 24.10.1996, but
same has not been done. Whereas, in the Sale Agreements
and General Power of Attorneys defendant No.1, his father
Krishnappa, his father's second wife papamma and her
daughters Rukkamma and Rajamma have affixed their
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OS No.25133, 25134
& 25137/2007
signatures/LTM as the case may be. Whereas, in the Sale
Agreements and General Power of Attorneys defendant
No.1, his father Krishnappa, his father's second wife
Papamma and her daughters Rukkamma and Rajamma
have affixed their signatures/LTM as the case may be.
These documents cannot be doubted, because in the legal
notice issued by the defendant No.1 he claims that they
had been made to forcibly put the signatures by his father
Krishnappa which imply that the said documents had been
executed by them. On one hand, it can be presumed that
defendants father Krishnappa was acting as kartha of the
family and on the other hand his only son from his first
wife defendant No.1, his second wife Papamma and her
adult daughter at that time Rajamma have subscribed to
the said documents. Here the point is whether the
possession has been handed over to the purchasers under
93
OS No.25133, 25134
& 25137/2007
the said documents. Since the defendants father ,
defendant No.1 and adult daughter of the second wife,
another daughter have signed the said deeds being adult
members of the family, it can be safely concluded that they
have handed over the possession of the sites sold
thereunder to the respective purchasers. Moreover, the
minor children after attaining majority even if had dispute
regarding sale, remedy for them was to file a suit for
avoiding the said sale transactions. But, in the Partition
suit in OS No.8415/1996, the purchasers have not been
made parties. Therefore, independent of the further
Agreement dtd. 9.9.1996 and Affidavit dtd. 24.10.1996, in
the absence of minor family members of the defendants
not filing any suit against the purchasers for avoiding sale
transactions, Plaintiffs title under the Sale Deeds got
registered by them on the basis of the General Power of
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OS No.25133, 25134
& 25137/2007
Attorney which was coupled with interest cannot be
faulted with. Suit having been filed on the basis of the
possession of the suit sites, above discussed material
abundantly corroborate the plaintiffs case that possession
of the suit site Nos.7 and 13 had been delivered under the
above said sale transactions.
39. In this background, submission made by the
Learned counsel for defendants before the court that the
suit schedule property was vacant at the time of
considering I.As filed by the plaintiffs under Order 39
Rules 1 and 2 of the CPC. shows that suit schedule sites
were at least vacant at that point of time. As mentioned
earlier in the written statement originally filed by the
defendants, they have not taken any contention that they
have got the sheds or other constructions put up in the suit
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& 25137/2007
schedule sites as on the date of the suit or even at the time
of filing the written statement. They have not taken any
such contention when they originally filed the written
statement. Further, in the land bearing Survey Number- 42
measuring 1 Acre 16 guntas, vendors family has retained a
number of sites for themselves. If their existed some shed
in the said portion before filing the suit it cannot be held
that the sheds were existing in the suit schedule sites as on
the date of the suit. Therefore, submission of the Learned
counsel for defendants that the land is completely vacant
can be accepted at least regarding the suit schedule sites.
When the Sale Agreements show that possession of the
suit property was delivered to the purchasers, burden is
on the vendors to show as to when and how they have
repossessed the sites and put up the constructions. By
remaining silent on the said aspect while filing the written
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& 25137/2007
statement, defendants cannot turn around to state that
there were already sheds constructed. Therefore, I am of
opinion that evidence on record is sufficient to hold that
the suit schedule site/sites were vacant as on the date of
the suit, despite some contradictory stray statements
forthcoming from some of the purchasers while deposing
evidence before the court.
40. As regards identification of the suit property is
concerned, layout plan given to the purchasers by the
vendors has been produced in the connected cases before
the court. In this case, a xerox copy is available and not
marked. On the other hand defendants have produced
another layout plan. But, the defendants layout plan has
been got prepared in accordance with the partition they
have effected themselves after obtaining compromise
decree in the partition suit. Same is subsequent to the sale
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& 25137/2007
transactions in favour of the purchasers. Recitals in the
Sale Agreements can be taken into consideration for
collateral purpose regarding passing of consideration and
also nature of the property at that time. Sale Agreements
recitals show sites had been formed by the vendor's family
in the land bearing Survey Number- 42 measuring 1 Acre
16 guntas. There is clear recital that they had formed sites.
Therefore, it is clear that a residential layout had been
formed in the agricultural land when the Sale Agreement
and General Power of Attorneys were executed for
consideration. In the light of the said averments,
defendants layout plan based on the compromise partition
decree obtained by them cannot be accepted. It is very
clear that for the purpose of suit, the defendants have
created the said layout plan and they have also obtained
compromise decree in collusion. The blue print copies of
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& 25137/2007
the layout plan produced by the plaintiffs in connected
cases bear the signatures of the defendants father
Krishappa, LTM of Papamma (LTM not visible, but
endorsement regarding LTM is visible) and signatures of
defendants 2 and 3 and their sister by name Bharathi.
Defendants 2 and 3 have not chosen to enter the witness
box to deny the said signatures and whereas DW.1/
Defendant No.1 feigns ignorance about the signatures of
the said parties. As already mentioned in the affidavit dtd.
24.10.1996 marked as Ex.P.5 and P.40 there is mention
about handing over the signed rough plan pertaining to the
schedule property for identification. There is no reason
why the plan produced by the plaintiffs should not be
accepted, though it is not an approved plan. For the
purpose of identification of the sites purchased by the
plaintiffs, said layout plan may be accepted.
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& 25137/2007
41. Evidence discloses that now the entire land has
been leveled and hence layout as formed is not capable of
identification. However, on the basis of the layout plan and
boudaries mentioned in their sale agreements and General
Power of Attorneys which are produced by the plaintiffs,
with the assistance of a technical person as court
commissioner it would be possible to re-construct the
layout and locate the respective sites of the plaintiffs in the
said land. Hence, contention that the suit sites are not
capable of identification cannot be accepted in the case.
42. Commissioner report shows that now the
compound wall have been constructed haphazardly and
there are some sheds in the land and even after he
conducted the local inspection,s subsequently another
shed has been constructed as pointed out in the photos
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& 25137/2007
confronted to him and the roof of the some other shed has
been changed. Commissioner report does not help in
knowing in which suit site compound wall has been
constructed and in which suit site sheds have been
constructed. But one thing is clearly established that after
an order of temporary injunction/status quo was granted,
the defendants have put up constructions of some sheds
and compound walls in the sites sold by them. Hence,
there is clear violation of the interim order of status quo/
temporary injunction which had been granted in the case.
In disobedience to the order of the court, defendants have
undertaken further constructions and changed the nature
of the suit schedule property. In this backdrop decision of
the Apex court in the case of Delhi Development
Authority Vs. Skipper Construction Co. (P) Ltd. and
another, reported in (1996) 4 SCC 622, relied on by
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& 25137/2007
Plaintiffs counsel requires to be taken note of. At para-18
to 21 of the said decision it has been held as below:-
"18. The above principle has been applied even in the
case of violation of orders of injunction issued by Civil
Court. In Clarke v. Chadburn (1985 (1) All. ER 211), Sir
Robert Megarry V-C observed:
"I need not cite authority for the proposition
that it is of high importance that orders of the
Court should be obeyed, willful disobedience to
an order of the Court is punishable as a contempt
of Court, and I feel no doubt that such
disobedience may properly be described as being
illegal. If by such disobedience the persons
enjoined claim that they have validly effected
some charge in the rights and liabilities of others,
I cannot see why it should be said that although
they are liable to penalties for contempt of Court
for doing what they did, never the less those acts
were validly done. Of course, if an act is done, it is
not undone merely by pointing out that it was
done in breach in law. If a meeting is held in
breach of an injunction, it cannot be said that the
meeting has not been held. But the legal
consequences of what has been done in breach of
the law may plainly be very much affected by the
illegality. It seems to me on principle that those
who defy a prohibition ought not to be able to
claim that the fruits of their defiance are good,
and not tainted by the illegality that produced
them."
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& 25137/2007
19. To the same effect are the decisions of the
Madras and Calcutta High Courts in Century Flour
Mills Limited v. S. Suppiah & Ors.(AIR 1975
Madras 270) and Sujit Pal v. Prabir Kumar Sun
(AIR) 1986 Calcutta 220). In Century Flour Mills
Limited, it was held by a Full Bench of the Madras
High Court that where an act is done in violation
of an order of stay or injunction, it is the duty of
the Court, as a policy, to set the wrong right and
not allow the perpetuation of the wrong-doing.
The inherent power of the Court, it was held, is
not only available in such a case, but it is bound
to exercise it to undo the wrong in the interest of
justice. That was a case where a meeting was held
contrary to an order of injunction. The Court
refused to recognise that the holding of the
meeting is a legal one. It put back the parties in
the same position as they stood immediately
prior to the service of the interim order.
20. In Suraj Pal, a Division Bench of the Calcutta High
Court has taken the same view. There, the defendant
forcibly dispossessed the plaintiff in violation of the
order of injunction and took possession of the property.
The Court directed the restoration of possession to the
plaintiff with the aid of police. The Court observed that
no technicality can prevent the Court from doing justice
in exercise of its inherent powers. It held that the object
of Rule 2-A of Order 39 will be fulfilled only where such
mandatory direction is given for restoration of
possession to the aggrieved party. This was necessary, it
observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be
applied and given effect to by this Court, if necessary , by
over-ruling any procedural or other technical objections.
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& 25137/2007
Article 129 is a constitutional power and when exercised
in tandem with Article 142, all such objections should
give way. The Court must ensure full justice between the
parties before it".
In a number of decisions Apex court has held that
when the defendants forcibly dispossess the plaintiff in
violation of the order of injunction or change the nature of
the property by disobeying the order of injunction, if
necessary by overruling any procedural or technical
objections, courts must ensure that full justice is made
between the parties. It has been held that court can invoke
inherent power to remove the mischief. In the above
decision, it has been further held that the courts in India
are not only courts of Law, but also courts of equity.
Therefore, law is very clear that when there is disobedience
to the interim order of the court and violation of the
interim order of injunction by the defendants, court can
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OS No.25133, 25134
& 25137/2007
invoke inherent power to do justice. I am of opinion that
said principle aptly apply to the facts of this case and the
technicalities and procedural objections cannot be allowed
to stand in light of the above position of law.
43. Now, having concluded that the suit schedule
sites in particular were vacant as on the date of the suit
and the defendants have encroached upon same by
putting up various constructions such as haphazard
compound walls and sheds, and by storing scrap materials,
etc., I am of opinion that by an order of mandatory
injunction defendants should be directed to remove the
encroachments on the suit schedule site Nos.7 and 13 and
hand over the vacant possession of the same to the
plaintiff in OS No.25137/2007 and also grant consequential
decree of permanent injunction to restrain the defendants
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OS No.25133, 25134
& 25137/2007
from interfering with plaintiffs possession of the said
sites. Consequently, Issue N.3 and Addl. Issue No 4 in OS
No.25133/2007 and 25134/2007 are answered in the
negative and in OS No.25137/2007 is answered in the
affirmative.
44.Issue No.4 in OS No.25133/2007, 25134/2007
and OS No.137/2007:- For the reasons stated above, I
proceed to pass the following :-
ORDER
Suits filed by the Plaintiffs in OS No.25133/2007 and OS No.25134/2007 are hereby dismissed with costs. 106
OS No.25133, 25134 & 25137/2007 Suit filed by the Plaintiff in OS No.25137/2007 is hereby decreed with costs.
The Defendants in OS No.25137/2007 and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suit at their cost within a period of three months and hand over vacant possession of the same to the plaintiff.
In default, it is ordered that the plaintiff shall be at liberty to execute this decree and remove the encroachments on the suit schedule site and take possession of the 107 OS No.25133, 25134 & 25137/2007 same through court process and recover the cost from the defendants.
Further, plaintiff in OS No.25137/2007 is granted a consequential Decree of permanent injunction thereby restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule site.
Keep original of this Judgment in OS No.25133/2007 and copies thereof in OS No.25134/2007 and OS No.137/2007.
Draw decree accordingly.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 19 th day of March, 2022)
--
108 OS No.25133, 25134 & 25137/2007 (D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c.IV ACC & SJ.,Mayo Hall, Bengaluru.
109
OS No.25133, 25134 & 25137/2007 ANNEXURE IN OS No.25133/2007 OS No.25134/2007 & OS No.25137/2007
1. List of witnesses examined for the plaintiffs:
P.W.1 Sri.Dasappa P.W.2 Sri.Gangadhar
2. List of witnesses examined for defendants:-
D.W.1 Sri.Gopal
3. List of witnesses examined for Court Commissioner:-
C.W.1 Sri.P.Venkataramana
4. List of documents exhibited for the plaintiff:
Ex.P.1 Agreement of sale dtd.24.10.1996 Ex.P.2 General Power of Attorney Ex.P.3 Sale Deed dtd. 15.12.1997 Ex.P.4 Notarized copy of the Agreement dtd.09.09.1996 110 OS No.25133, 25134 & 25137/2007 Ex.P.5 Affidavit of Krishnappa Ex.P.6-7 Assessment Register Extract Ex.P.8-10 Tax paid receipts Ex.P.11-20 S.A.S receipts Ex.P.21 Encumbrance Certificate Ex.P.22 General Power of Attorney Ex.P.23 Sale Deed dtd. 15.12.1997 Ex.P.24 Assessment Register Extract Ex.P.25-34 S.A.S. receipts Ex.P.35-36 Encumbrance Certificates Ex.P.37 General Power of Attorney Ex.P.38 Agreement of Sale Ex.P.39 Sale Deed dtd. 21.03.1994 Ex.P..40 Affidavit Ex.P.41 Assessment Register Extract Ex.P.42-51 S.A.S. receipts 111 OS No.25133, 25134 & 25137/2007 Ex.P.52-53 Encumbrance Certificates Ex.P.54 Photographs with C.D. Ex.P.55 Certified copy of the deposition in OS No.25133/2007
5. List of documents exhibited for defendants:
Ex.D.1-2 Certified copy of the Encumbrance Certificates Ex.D.3-5 Certified copy of the RTC Ex.D.6 Certified copy of the compromise petition in OS No.8415/1996 Ex.D.7 Certified copy of the final decree in OS No.8415/1996 Ex.D.8 Certified copy of the Layout plan Ex.D.9 Encumbrance Certificate Ex.D10 Mutation Register Extract Ex.D.11-12 RTC Ex.D.13-14 Certified copy of the Tax receipts 112 OS No.25133, 25134 & 25137/2007 Ex.D.15-16 Encumbrance Certificates Ex.D.17 Certified copy of the tax receipts Ex.D.18 Certified copy of the Affidavit Ex.D.19 Copy of the notice issued to the plaintiff Ex.D.20 Copy of the notice issued to K.Ramaiah Ex.D.21-22 Postal receipts Ex.D.23 Certificate of Posting Ex.D.24-25 Postal acknowledgment Ex.D.26 Copy of the caveat petition Ex.D.27 Certified copy of the Order sheet in RFA No.1022/2007 Ex.D.28 Death Certificate of Krishna Reddy Ex.D.29-30 Revocation of Power of Attorney Ex.D.31 Certified copy of the Final Decree in OS No.8415/1996.
Ex.D.32 Copy of Form 'B' Property Register 113 OS No.25133, 25134 & 25137/2007 Ex.D.33 Copies of Tax paid receipts Ex.D.34-35 Copy of the Final decree in OS No.8415/1996 dtd. 14.02.2007 Ex.D.36 Copies of the Record of Rights in respect of Survey Number-42/1 Ex.D.37 Copy of Katha Certificate. Dtd.
27.12.2013 Ex.D.38 Copy of Form 'B' Register Ex.D.39 Copy of Katha Registration notice dtd. 18.12.2013 Ex.D.40 Copies of Tax paid receipts Ex.D.41 Copy of the Final decree in OS NO.8415/1996 Ex.D.42 Copies of 5 RTC Ex.D.43 Copy of the Encumbrance Certificate Ex.D.44-46 Certified copy of Form 'A' under RTI Act with IPO counter files Ex.D.47-49 Endorsements issued by BBMP Ex.D.50 Certified copy of the written statement in OS No.8415/1996 114 OS No.25133, 25134 & 25137/2007 Ex.D.51 Certified copy of the deposition of RW.1 in OS No.8415/1996 Ex.D.52 Certified copy of the deposition of PW. 1In OS No.8415/1996
6. List of documents exhibited for Court Commissioner Ex.C.1 Certified copy of the commission warrant Ex.C.2 Certified copy of the notice Ex.C.3 Certified copy of the Memo of Instructions of plaintiff Ex.C.4 Certified copy of the Memo of instructions of defendants Ex.C.5 Certified copy of the spot mahazar drawn Ex.C.6 Certified copy of the Report Ex.C.7-8 Certified copy of the Photos Ex.C.9 Certified copy of the Video DVD Ex.C.10 Certified copy of the DVD and Photo 115 OS No.25133, 25134 & 25137/2007 Ex.C.11 Certified copy of the bill issued by Preethi Video Vision Ex.C.12 Certified copy of the objection filed by the plaintiff.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru 116 OS No.25133, 25134 & 25137/2007 Vide Notification No.DJA.I/550/1993 dtd. 17.03.2022 issued by the High Court of Karnataka, Bengaluru on account of Holi, holiday was declared on 18.03.2022 and hence, case is called today i.e., 19.03.2022.
117
OS No.25133, 25134 & 25137/2007 (Common judgment pronounced vide separate common judgment) ORDER Suits filed by the Plaintiffs in OS No.25133/2007 and OS No.25134/2007 are hereby dismissed with costs.
Suit filed by the Plaintiff in OS No.25137/2007 is hereby decreed with costs. The Defendants in OS No.25137/2007 and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suit at their cost within a period of three months and hand over vacant possession of the same to the plaintiff.
In default, it is ordered that the plaintiff shall be at liberty to execute this decree and remove the encroachments on the suit schedule site and take possession of the same through court process and recover the cost from the defendants. 118
OS No.25133, 25134 & 25137/2007 Further, plaintiff in OS No.25137/2007 is granted a consequential Decree of permanent injunction thereby restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule site.
Keep original of this Judgment in OS No.25133/2007 and copies thereof in OS No.25134/2007 and OS No.137/2007.
Draw decree accordingly.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru