Bangalore District Court
Sri P. Jayaram vs Sri M.N.Somaiah on 17 October, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 17th day of October 2017
PLAINTIFF: Sri P. Jayaram
S/o Late Chikkapoojappa @
Badigappa,
Aged about 47 years,
Agriculturist,
R/o Babusapalya Village,
K.R.Puram Hobli,
Kalyananagar Post,
Bangalore-560 043.
[By Sri KS., Advocate]
/v e r s u s/
DEFENDANTS: 1. Sri M.N.Somaiah
S/o Late M.K.Nanjaiah,
Since deceased by his LRs:
1(a) Smt. M.S.Kaveramma,
W/o Late M.N.Somaiah,
Aged about 50 years,
1(b) Sri M.S.Rakesh,
S/o Late M.N.Somaiah,
Aged about 28 years,
2 O.S. 5937/2003
1(c) Kum. M.S.Monisha,
D/o Late M.N.Somaiah,
Aged about 25 years,
All are R/at No.110, Kaveri
Nilaya, 1st Cross,
Balachandra Layout,
Babusabpalya,
Bangalore-560 043.
2. Smt. M.S.Kaveramma,
W/o Sri M.N.Somaiah,
Aged about 40 years,
Both are residents of
Babusapalya Village,
K.R.Puram Hobli,
Kalyananagar Post,
Bangalore-560 043.
3. The Bangalore Development
Authority, Represented by
its Commissioner,
Kumarapark West,
Bangalore.
D1- Dead
D1(b) & (c) - Exparte
D1(a) & D2 - By Sri MAK, Advocate
D3- By Sri SY, Advocate
Date of institution of the : 21/08/2003
suit
Nature of the suit : For declaration and
injunction
Date of commencement of : 13/10/2008
recording of the evidence
Date on which the : 17/10/2017
Judgment was
pronounced.
3 O.S. 5937/2003
Total duration : Year/s Month/s Day/s
14 1 27
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendants
for the relief of declaration and injunction declaring
that the plaintiff is the absolute owner of the suit
schedule property; and declare that the defendant
no.1 is not the agent of the plaintiff and the defendant
no.1 has no power of attorney to act as agent of the
plaintiff in respect of the suit schedule property and
the acts, if any, of the defendants is not binding on
the plaintiff; and also declare that defendant no.1 and
2 are not entitled for the award amount in respect of
the suit schedule property and grant such other relief
or relies as the Hon'ble Court deems fit to grant in the
facts and circumstances of the case, in the interest of
justice and equity.
4 O.S. 5937/2003
2. In brief, the plaintiff's case is as under:
Plaintiff is the absolute owner and in exclusive
possession of suit schedule property. Plaintiff has
acquired suit schedule property along with other
properties in oral family partition effected between his
brothers and his uncles and pursuant to the oral
partition a palu-patti was written reflecting the
properties allotted to each members of the family.
Pursuant to the partition, plaintiff was and is enjoying
the schedule property along with other properties as
absolute owner. Pursuant to the family partition,
name of the plaintiff was incorporated in the revenue
records. The plaintiff is an agriculturist and he has no
other avocation except agricultural operation. The
plaintiff is maintaining his family out of his income
derived from the agricultural operation. BDA has also
notified suit schedule property for acquisition along
with other properties by preliminary notification dated
3/2/2003 for formation of Arkavathi Layout. Pursuant
to the issue of preliminary notification by the BDA,
5 O.S. 5937/2003
notice has been issued to the plaintiff and plaintiff has
filed detailed objections objecting for proposed
acquisition and in the alternative, he has sought for
compensation of Rs.25 lakhs per acre. The BDA
pursuant to the preliminary notification has also
published final notification on 23/3/2004 and same
was published in the Karnataka Gazette on the same
day as per Section 19 of the BDA Act during the
pendency of this suit. Thereafter, an award has also
been passed and possession to an extent of 20 guntas
out of 29 guntas of survey no.121/2A of Chellakere
village has been taken by BDA. Award has been
passed on 10/4/2004 directing the parties to
approach the Civil Court under Section 30 of the Land
Acquisition Act during the pendency of this suit.
Defendant no.1 is an estate agent in Babusapalya
village and he is in the habit of creating fraudulent
documents and cheating innocent bonafide
purchasers. The defendant no.2 is the wife of
defendant no.1. The defendant no.1 and 2 are not
6 O.S. 5937/2003
agriculturist and they are not owning any agricultural
property and there is no intention to do agricultural
operation. In fact, defendant no.2 is an employee of
State Government. Taking advantage of the
helplessness and innocency of the plaintiff, defendant
no.1 subsequent to the proposal for acquisition of the
schedule property by the BDA has created fraudulent
GPA alleged to have been executed by plaintiff in
favour of defendant no.1 and on the basis of alleged
GPA he has executed sale deed on 13/1/2003 in
respect of schedule property in favour of second
defendant who is his wife. Plaintiff has no transaction
whatsoever with defendant no.1 and 2 and plaintiff
has not executed any document in favour of defendant
no.1 or 2 muchless alleged GPA as alleged by the
defendant no.1 in the alleged sale deed dated
13.1.2003.
It is pertinent to note that, defendant no.1 is not
the agent of plaintiff and plaintiff has not authorized
defendant no.1 to manage the affairs of schedule
7 O.S. 5937/2003
property. That the plaintiff has no intention to sell the
suit schedule property in favour of anybody. That the
plaintiff has not received any sale consideration as
referred in the alleged sale deed dated 13/1/2003.
The alleged act of the defendant no.1 regarding
alienation of the schedule property in favour of
defendant no.2 based on alleged GPA is not binding
on the plaintiff and no valid title passes in favour of
defendant no.2 under registered sale deed dated
13/1/2003 in view of the fact that defendant no.1 is
not the agent of plaintiff. The plaintiff was and is in
possession and personally cultivating the suit
schedule property. Defendant No.1 and 2 have not
acquired any right or possession over the suit
schedule property. On enquiry, plaintiff came to know
that defendant no.1 on the basis of fraudulent GPA
has alienated the schedule property in favour of
defendant no.2 and pursuant to the fraudulent sale
deed, defendant no.2 without due process of law
behind the back of plaintiff has got transferred the
8 O.S. 5937/2003
katha in respect of suit schedule property. Defendant
no.2 is not at all in possession of suit schedule
property on the basis of alleged sale deed. Hence this
suit.
3. In response to suit summons issued by the
court defendants 1 to 3 appeared through their
counsel and defendants 1 and 2 filed joint written
statement and whereas defendant no.3 has not filed
any written statement.
4. In brief the contents of the written
statement field by defendants 1 and 2 are as under:
It may be true that plaintiff had acquired
schedule property along with other properties in oral
family partition. That the plaintiff was working in
Police Department and when he finds financial
difficulty, he came and approached first defendant
through his relative Govindappa and introduced first
defendant to buy the property as plaintiff was badly in
need of money. Even though defendant no.1 did not
agree to purchase in the first instance after much
9 O.S. 5937/2003
persuasion he agreed to buy the property. In view of
the restriction / ban imposed by the Government for
registration of the agricultural lands, the plaintiff after
having received entire sale consideration amount
executed agreement of sale coupled with GPA and
affidavit in favour of first defendant and assured that
plaintiff will not interfere in respect of schedule
property in any manner. Accordingly, first defendant
was put in possession by the plaintiff. Subsequent to
the notification of the schedule property by the BDA,
second defendant filed her objection on 17.3.2003
along with document to show that she is the absolute
owner of suit schedule property and she is alone
entitled for award amount. When there was a meeting
in BDA office, the plaintiff appeared therein and
during the talk with the defendant no.1 and 2 he
snatched away the original agreement of sale and GPA
and as a result first defendant has given police
complaint on 27/7/2003 before jurisdictional police.
It is not true to contend that defendant no.1 and 2 are
10 O.S. 5937/2003
not the agriculturist and they do not own any
agricultural property. The plaintiff after having
received sale consideration executed GPA and as such
sale deed dated 13/1/2003 is binding on the plaintiff.
The plaintiff himself is aware of the fact of execution of
sale deed by first defendant in favour of second
defendant. Since plaintiff has executed GPA, it is
binding on the plaintiff. It is false to contend that the
plaintiff is in possession of the suit schedule property
as on the date of acquisition of the suit schedule
property. The plaintiff in order to get compensation
amount and to defeat the legitimate right of the
defendants 1 and 2 has filed false suit. There is no
cause of action for filing this suit. On these grounds,
they prayed for dismissal of the suit.
5. During the pendency of the suit, defendant
no.1 was reported to be dead and his LRs including
defendant no.2 are brought on record. Other LRs of
defendant no.1 did not appear and contest the case of
plaintiff. However, defendant no.2 who is also one of
11 O.S. 5937/2003
the legal heir of deceased defendant no.1 has
proceeded with the case.
6. On the basis of the pleadings of the parties,
my predecessor in the office has framed following
issues:
(1) Whether the plaintiff proves
that he is the absolute owner of
the suit schedule property?
(2) Whether the plaintiff proves
that defendant No.1 has no
power of authority to act as
agent of the plaintiff in respect
of the suit schedule property?
[Deleted as per order dated
17/6/2017]
(3) Whether the plaintiff proves his
lawful possession over the suit
schedule property as on the
date of the suit?
(4) Whether the plaintiff proves the
alleged interference of the
defendant in the suit schedule
property?
12 O.S. 5937/2003
(5) Whether the plaintiff is entitled
for permanent injunction
against defendants 1 and 2 as
prayed?
(6) Whether plaintiff is entitled for
mandatory injunction against
defendant No.3 as prayed in the
plaint?
(7) Whether Court fee paid is
sufficient?
(8) Whether plaintiff is entitled for
the declaratory relief as prayed?
(9) What decree or order?
7. In this case, plaintiffs in order to prove his
case, he examined himself as PW.1 and got marked
Ex.P1 to Ex.P15 and closed his side of evidence.
Defendant no.1 and 2 have not adduced any
evidence. After hearing and considering the evidence
on record, my predecessor in the office has decreed
the suit by Judgment and Decree dated 14/9/2011.
It appears from the records that being aggrieved by
the said Judgment and Decree the defendant no.2
13 O.S. 5937/2003
filed RFA No.1049/2012 before Hon'ble High Court of
Karnataka. After hearing, the Hon'ble High Court of
Karnataka has set aside the Judgment and Decree
passed by this court and remanded the matter with
the direction to this court to dispose of the matter
after giving opportunity to the defendants in
accordance with law.
8. After remand of the matter, the following
additional issues are framed for consideration:
(1) Whether the defendants prove
that after receiving the entire
sale consideration amount from
defendant no.1, the plaintiff
has executed agreement of sale
coupled with GPA and affidavit
in favour of the defendant No.1
in respect of the suit schedule
property?
(2) Whether the defendants prove
that the defendant no.1 is the
agent of the plaintiff and on the
basis of the agreement of sale
coupled with GPA and Affidavit
the defendant no. has executed
14 O.S. 5937/2003
sale deed in favour of defendant
no.2?
(3) Whether the defendants prove
that plaintiff during the talk
with the defendants1 and 2
snatched away the Original
Agreement of sale, GPA and
Affidavit?
9. In this case, after remand plaintiff further
examined as PW.1 and got marked Ex.P16 to Ex.P22
documents and closed his side of evidence. On the
other hand, defendant no.2 examined herself as DW.1
and produced in all 23 documents which are marked
as Ex.D1 to Ex.D23 and closed her side of evidence.
Defendant no.3 has not taken any participation in the
proceedings.
10. Heard the arguments on both sides and
perused the entire records of the case. During the
course of arguments, learned counsel for the plaintiff
has relied upon following decisions.
1. (2012) 1 SCC 656
15 O.S. 5937/2003
2. (1980) 1 SCC 704
3. (2003) 3 SCC 583
4. AIR 2007 (NDC) 710 (KAR)
5. AIR 2006 KAR 127.a
6. (2000) 3 SCC 536
7. ILR 2008 KAR 672
8. 2014 (3) KCCR 1889
9. ILR 2006 KAR (SN) 20.
11. My findings on the above issues and
additional issues are as under:
Issue No. 1) ............ In the affirmative;
Issue No. 2) ............ Deleted as per order dated
27/6/2017.
Issue No. 3) ............ Does not survive for
Consideration.
Issue No. 4) ............ Does not survive for
Consideration.
Issue No. 5) ............ Does not survive for
Consideration.
Issue No. 6) ............ Does not survive for
Consideration.
Issue No. 7) ............ In the affirmative;
Issue No. 8) ............ In the affirmative;
16 O.S. 5937/2003
Issue No. 9) ............ As per final order for the
following:
Addl.Issue No. 1) ............ In the negative;
Addl.Issue No. 2) ............ In the negative;
Addl.Issue No. 3) ............ In the negative;
12. ISSUE NO.3 TO 6: Earlier plaintiff filed this
suit against defendants for the relief of declaration
and for permanent injunction restraining defendants
1 and 2 from interfering with his peaceful possession
and enjoyment over the suit schedule property and
also to restrain the defendant no.3 from paying any
award amount in favour of defendants 1 and 2 in
respect of the suit schedule property. It appears from
the evidence on record that during the pendency of
this suit, defendant no.3 -BDA has acquired suit
schedule property and taken possession of the same
and also passed award in respect of the suit schedule
property and directed the parties to approach Civil
Court to establish their ownership over the suit
schedule property. Since suit schedule property has
17 O.S. 5937/2003
been already acquired by the BDA and possession has
already taken and as award is already passed, these
issues are does not survive for consideration.
Accordingly, I answer these issues.
13. ISSUE NO.1 AND ADDITIONAL ISSUE
NO.1 TO AND 3: Now I will consider these issues
together as they are interconnected with each other
and evidence is commons and for the sake of brevity.
14. It is the case of the plaintiff that he is the
absolute owner of suit schedule property and he
acquired the suit schedule property along with other
properties in a family partition and katha was
changed in his name pursuant to partition and he was
and is in lawful possession and enjoyment of the suit
schedule property.
15. Further it is the case of the plaintiff that
BDA has notified the suit schedule property for
acquisition along with other properties by preliminary
notification dated 3/2/2003 for formation of
Arkavathi Layout and pursuant to the preliminary
18 O.S. 5937/2003
notification, BDA has also issued notice and he has
filed detailed objections for proposed acquisition.
Further it is the case of the plaintiff that BDA has also
passed final notification on 23/3/2004 and same was
published in the Karnataka Gazette on the same day
as per Section 19 of the BDA Act during the pendency
of this suit and BDA has also passed award and taken
possession of the suit schedule property.
16. Further it is the case of the plaintiff that
defendant no.1 is an Real Estate Agent and he has
created GPA in respect of the suit schedule property
without his knowledge and he has sold the suit
schedule property on the basis of GPA in favour of his
wife who is defendant no.2.
17. Further it is the case of the plaintiff that he
has not at all authorized defendant no.1 to execute
any document in respect of the suit schedule property
and he has not received any sale consideration
amount and hence sale deed dated 13/1/2003 is
illegal and same is not binding on him. Further it is
19 O.S. 5937/2003
the case of the plaintiff that he is the absolute owner
and he was in lawful possession and enjoyment of the
suit schedule property and hence he is entitled for
award amount.
18. In this case defendant no.1 and 2 appeared
through their counsel and filed joint written statement
denying the case of plaintiff. They admitted that
plaintiff was the owner of suit schedule property. But
they contended that in view of the restriction / ban
imposed by the Government for registration of
agricultural lands the plaintiff after having received
the entire sale consideration amount, executed
agreement of sale coupled with GPA and affidavit in
favour of first defendant and assured that plaintiff will
not interfere in respect of the schedule property in any
manner and accordingly first defendant was put in
possession of the suit schedule property by the
plaintiff.
19. Further defendants contended that
thereafter defendant no.1 has sold the suit schedule
20 O.S. 5937/2003
property in favour of defendant no.2 under registered
sale deed dated 13/1/2003 and delivered possession
of the suit schedule property and now defendant no.2
is the absolute owner of suit schedule property and
defendant no.2 is entitled for award amount from the
BDA.
20. Defendants further contended that the
plaintiff after having received the sale consideration
executed the GPA and as such sale deed dated
13/1/2003 is binding on the plaintiff and plaintiff
himself is aware of the fact of execution of the sale
deed by first defendant in favour of second defendant.
Defendants no.1 and 2 denied that plaintiff is the
owner of suit schedule property and they contended
that plaintiff has already lost his right, title and
interest over the suit schedule property since he has
executed agreement of sale coupled with GPA and
affidavit.
21. In this case plaintiff in order to prove his
case he examined himself as PW.1. He filed affidavit
21 O.S. 5937/2003
evidence in lieu of his examination in chief. In his
examination in chief, he reiterated the plaint
averments. He produced in all 22 documents which
are marked as Ex.P1 to Ex.P22. In the cross-
examination he denied that he has executed GPA in
respect of suit schedule property in favour of
defendant no.1 by receiving sale consideration
amount. He denied that GPA bears his signature.
22. In this case defendant no.2 examined
herself as DW.1. She filed affidavit evidence in lieu of
her examination in chief. In her examination in chief,
she reiterated the contention taken in her written
statement. She produced in all 23 documents which
are marked as Ex.D1 to Ex.D23. In the cross-
examination, she stated that she do not know the
boundaries of the suit schedule property and she has
not seen the suit schedule property. She further
stated that she do not know anything about Ex.D3.
23. I have perused entire oral and documentary
evidence adduced by both the parties. It is an
22 O.S. 5937/2003
admitted fact that plaintiff is the owner of suit
schedule property and he acquired the same in the
oral partition along with other properties. But
defendants 1 and 2 contended that plaintiff himself
come forward to sell the suit schedule property and in
view of the restriction / ban imposed by the
Government for registration of the agricultural lands,
the plaintiff after having received the entire sale
consideration amount, executed agreement of sale
coupled with GPA and affidavit in favour of first
defendant and assured that plaintiff will not interfere
in respect of the suit schedule property in any
manner.
24. Defendants also contended that defendant
no.1 has sold the suit schedule property in favour of
defendant no.2 under registered sale deed dated
13/1/2003 and put her in possession of the suit
schedule property and defendant no.2 was in
possession and enjoyment of the suit schedule
property as the absolute owner and plaintiff has lost
23 O.S. 5937/2003
his right over the suit schedule property after
executing the agreement of sale coupled with GPA in
favour of defendant no.1.
25. In this case plaintiff has seriously denied
the execution of GPA, agreement of sale and affidavit
as contended by the defendants. In this case,
defendant no.2 has produced alleged GPA which is
marked as Ex.D3 subject to objection. It shows that
plaintiff has executed GPA authorizing the defendant
no.1 to sell the suit schedule property on 2/3/1995.
26. In this case plaintiff contended that he has
not at all executed GPA and GPA produced by the
defendants 1 and 2 is concocted and it does not bear
his signature. Hence, as per additional issue no.1 and
2, heavy burden lies on the defendants 1 and 2 to
prove that after receiving the entire sale consideration
amount from defendant no.1, plaintiff has executed
agreement of sale coupled with GPA and affidavit in
favour of defendant no.1 and defendants also have to
prove that defendant no.1 is the agent of plaintiff and
24 O.S. 5937/2003
on the basis of agreement of sale coupled with GPA
and affidavit, defendant no.1 has executed sale deed
in favour of defendant no.2. In this case, defendant
no.2 has produced only GPA which is marked as
Ex.D3. During the pendency of this suit, defendant
no.1 was reported to be dead and hence plaintiff
brought his LRs on record. Defendant no.2 who is wife
of defendant no.1 was already on record and she only
proceeded with the matter. Other legal heirs did not
come forward to prosecute the case.
27. In this case admittedly defendant no.2 has
not produced agreement of sale and affidavit which is
said to have been executed by plaintiff in favour of
defendant no.1. According to defendants, during the
time of talks with defendants 1 and 2 at BDA office,
plaintiff has snatched away the original agreement of
sale, GPA and affidavit. Hence, as per additional issue
no.3, heavy burden lies on the defendants to prove
that plaintiff during the time of talks with defendants
1 and 2 has snatched away the original agreement of
25 O.S. 5937/2003
sale and affidavit. But, in this case, defendant no.2
has not adduced any cogent evidence on record to
show that plaintiff has snatched away the original
agreement of sale and affidavit. According to
defendants, when there was a meeting in BDA office,
plaintiff appeared therein and during the talk with
defendant no.1 and 2, he snatched away original
agreement of sale, GPA and as a result first defendant
has given police complaint before jurisdictional police.
But, in this case defendant no.2 has not produced any
copy of the complaint or endorsement to show that
defendant no.1 has filed complaint against plaintiff for
snatching away the original documents as contended
by defendants 1 and 2. Even in this case, defendant
no.2 did not choose to examine the officials of BDA
who were present at the time of meeting and when
plaintiff has snatched the original agreement of sale
and other documents. Hence, in the absence of cogent
evidence, the self-interested testimony of DW.1 that
plaintiff has snatched away the agreement of sale,
26 O.S. 5937/2003
GPA and affidavit cannot be accepted. If really
defendant no.1 had filed complaint against plaintiff
for snatching the original documents, then defendant
no.2 could have produced copy of the complaint or
endorsement issued by the police. But in this case,
defendant no.2 has not produced any such
documents before the court. Even according to
plaintiff, when meeting was held in BDA office,
plaintiff has snatched away the documents. It shows
that at the time of meeting, officials of BDA were
present. That being so, defendant no.1 could have
examined any one of the official witness who have
present at the time of meeting to prove that plaintiff
has snatched away the original agreement and other
documents from the defendants 1 and 2. Apart from
that even DW.1 herself in her cross-examination
stated that she do not know about snatching of
documents by the plaintiff as stated in para no.7 of
her written statement. It shows that DW.1 pleads
ignorance about the snatching of documents by the
27 O.S. 5937/2003
plaintiff from the defendants 1 and 2. Hence, from the
evidence of DW.1, it cannot be said that plaintiff has
snatched away the agreement of sale, GPA and
affidavit as contended by defendants. Defendants
have not adduced any cogent evidence to prove
additional issue no.3. Hence in the absence of cogent
evidence, it cannot be said that plaintiff has snatched
away the original agreement of sale, GPA and affidavit
as contended by defendants 1 and 2. In this case,
defendants 1 and 2 have not produced agreement of
sale to show that plaintiff has received sale
consideration amount in respect of the suit schedule
property. Even defendant no.2 has not examined
anyone of the attesting witness to the said sale
agreement to prove that defendant no.1 has paid sale
consideration amount in respect of the suit schedule
property to the plaintiff. Hence, in the absence of
cogent evidence, it cannot be said that plaintiff after
having received the entire sale consideration amount,
executed agreement of sale coupled with GPA, affidavit
28 O.S. 5937/2003
in favour of first defendant. Hence from the evidence
on record, it is much clear that, defendants 1 and 2
have not at all paid any sale consideration amount to
the plaintiff in respect of the suit schedule property.
Ex.D3 is the GPA. Plaintiff has seriously denied the
execution of Ex.D3. Hence, it is for the defendant no.2
to prove that plaintiff has executed Ex.D3 in favour of
defendant no.1. But, in this case, defendant no.2 has
not examined anyone of the attesting witness to the
Ex.D3 to prove the due execution of the same.
Further, defendant no.2 also not adduced any cogent
evidence to prove that plaintiff has executed Ex.D3 in
favour of defendant no.1 in respect of the suit
schedule property. It is also important to note that,
plaintiff has seriously denied his signature on Ex.D3.
But, defendant no.2 has not taken any steps to send
Ex.D3 to the Handwriting Expert along with the
admitted signature of plaintiff. Hence, defendant no.2
has utterly failed to prove due execution of Ex.D3.
Plaintiff in his plaint clearly stated that he has not at
29 O.S. 5937/2003
all executed any GPA in favour of defendant no.1. In
the cross-examination also, PW.1 categorically denied
the execution of Ex.D3 and also denied his signatures
on Ex.D3. Nothing has been elicited from the mouth of
PW.1 to show that he has executed Ex.D3 in favour of
defendant no.1 and it bears his signatures. Hence, I
do not find any reasons to disbelieve the evidence of
PW.1. As already stated in this case, defendant no.2
has not produced agreement of sale and affidavit to
show that plaintiff by receiving the sale consideration
amount has executed agreement of sale coupled with
GPA and affidavit in favour of first defendant. Hence,
defendant no.1 does not acquire any valid title over
the suit schedule property.
28. It is also important to note that, Ex.D3 is
not a registered document. Plaintiff has seriously
denied the due execution of Ex.D3 in favour of
defendant no.1 in respect of the suit schedule
property. Defendant no.2 has failed to prove due
execution of Ex.D3. Under such circumstances,
30 O.S. 5937/2003
defendant no.1 has no authority to execute the sale
deed in favour of his wife who is defendant no.2 on
the basis of alleged Ex.D3. Hence, by virtue of the
alleged sale deed dated 13/1/2003, defendant no.2
does not acquire any valid right, title and interest over
the suit schedule property.
29. It is also important to note that, DW.1 in
her cross-examination stated that she do not know
the boundaries of the suit schedule property and she
has not seen the suit schedule property. It clearly
shows that defendant no.2 is not at all in possession
of suit schedule property. When DW.1 herself in her
cross-examination clearly stated that she has not seen
the suit schedule property, then it cannot be said that
she was in possession of the suit schedule property on
the basis of alleged sale deed. Even DW.1 does not
know the boundaries of suit schedule property. It
clearly shows that defendant no.1 or 2 never in
possession and enjoyment of the suit schedule
property. DW.1 in her cross-examination stated that
31 O.S. 5937/2003
she do not know anything about Ex.D3 and Ex.D3
does not bear the signature of her husband and there
is a difference of ink in typing at page no.1 and 3. She
further stated that she do not know who has brought
stamp paper of Ex.D3 and she was not present at the
time of execution of Ex.D3. Hence, the evidence of
DW.1 clearly shows that she do not know anything
about Ex.D3 and she totally pleads ignorance about
Ex.D3 which is GPA. Hence, from the evidence of
DW.1, it cannot be said that plaintiff has executed
Ex.D3 in respect of suit schedule property in favour of
defendant no.1. As already stated DW.1 who is
defendant no.2 does not know anything about this
Ex.D3 and she totally pleads ignorance about Ex.D3.
Further, in this case, defendant no.2 also not
examined any other witness to prove the execution of
Ex.D3. Hence, defendant no.2 has utterly failed to
prove the due execution of Ex.D3. Hence, it is much
clear that plaintiff has not executed Ex.D3 and it is a
fraudulent document. Moreover, in this case, even
32 O.S. 5937/2003
though defendant no.1 and 2 contended that plaintiff
has executed agreement of sale coupled with GPA and
affidavit, but defendant no.2 has not produced alleged
agreement of sale and affidavit to show that plaintiff
has executed agreement of sale in respect of suit
schedule property by receiving entire sale
consideration amount. Defendant no.2 also not
examined anyone of the witness to the agreement of
sale to show that plaintiff has executed agreement of
sale by receiving entire sale consideration amount in
respect of the suit schedule property. Hence,
defendant no.2 has utterly failed to prove that
defendant no.1 has paid sale consideration amount in
respect of suit schedule property to the plaintiff.
Hence, defendant no.1 does not acquire any valid
right, title and interest over the suit schedule property
on the basis of alleged Ex.D3.
30. It is also important to note that, DW.1 in
her cross-examination clearly stated that she was not
present at the time of execution of agreement of sale
33 O.S. 5937/2003
and she do not know how much amount was paid by
her husband to the plaintiff at the time of execution of
GPA and agreement of sale and affidavit. She further
stated that she do not know the witnesses in whose
presence the sale transaction took place. Hence from
the evidence of DW.1, it is much clear that she was
not at all present at the time of execution of the
agreement of sale and she do not know how much
amount was paid by defendant no.1 to the plaintiff at
the time of execution of the alleged GPA. Hence, DW.1
pleads ignorance about the execution of agreement of
sale, GPA and affidavit executed by plaintiff in favour
of defendant no.1. Hence from the evidence of DW.1 it
cannot be said that plaintiff has executed agreement
of sale coupled with GPA and affidavit in favour of
defendant no.1 in respect of suit schedule property.
Further, from the evidence of DW.1, it cannot be said
that defendant no.1 has paid sale consideration
amount to the plaintiff in respect of the suit schedule
property. DW.1 herself does not know anything about
34 O.S. 5937/2003
the execution of agreement of sale, GPA and affidavit
by the plaintiff in favour of defendant no.1. Further,
she does not know anything about the sale
consideration amount paid by defendant no.1 to the
plaintiff. In this case defendant no.1 also not adduced
any other evidence to prove that plaintiff has executed
agreement of sale coupled with GPA and affidavit in
respect of suit schedule property in favour of
defendant no.1 by receiving sale consideration
amount. Hence defendant no.1 has utterly failed to
prove that plaintiff has executed agreement of sale,
GPA and affidavit pertaining to suit schedule property
in favour of defendant no.1 by receiving sale
consideration amount.
31. It is pertinent to note that, Ex.D3 is a
unregistered document. Defendant no.1 also not
properly proved due execution of Ex.D3. It is held in a
decision reported in (2012) 1 SUPREME COURT
CASES) 656 wherein Their Lordships held as under:
35 O.S. 5937/2003
"A. Transfer of Property Act,
1882 - Ss. 54, 55, 53-A, 105, 107, 5
and 8 - Immovable property - Proper
mode of transfer/conveyance of -
General power of attorney sales (GPA
sales) or sale agreement/general
power of attorney/ will transfers
while testator is alive
(SA/GPA/living will transfers) -
Legality - Held, immovable property
can be transferred / conveyed only
by deed of conveyance (sale deed)
duly stamped and registered as
required by law - Explaining the
nature and scope of an agreement
for sale, power of attorney and living
will, held, GPA sales or
SA/GPA/living will transfers neither
convey any title nor do they amount
to transfer of, or create interest in,
immovable property except to the
limited extend of S.53-A -
Observations of Delhi High Court in
Asha M.Jain case, (2001) 94 DLT
841 the attorney sale was a
36 O.S. 5937/2003
recognized mode of transaction,
held - unwarranted and unjustified."
32. I have perused the above said ruling and
followed the principles laid down in the above said
decision. From the above said decision, it is much
clear that immovable property can be transferred or
conveyed only by deed of conveyance i.e., sale deed
duly stamped and registered as required by law.
Agreement of sale, Power of Attorney and living Will
neither convey any title nor do they amount to
transfer of, or create interest in immovable property
except to the limited extent of Section 53-A.
33. In this case, admittedly plaintiff has not
executed any sale deed in respect of suit schedule
property in favour of defendant no.1. Defendant no.1
is claiming his ownership over the property on the
basis of GPA. But in view of the above referred
decision, GPA will not convey any title in respect of
immovable property except to the limited extent of
Section 53-A. It is pertinent to note that, admittedly
37 O.S. 5937/2003
BDA has already suit schedule property and taken
possession of the suit schedule property. Hence
question of Section 53-A does not arise at all. Ex.D3
does not confer any right, title and interest over the
suit schedule property in favour of defendant no.1. In
this case there is no cogent evidence on record to
show that defendant no.1 has paid entire sale
consideration amount to the plaintiff in respect of the
suit schedule property. Hence defendant no.1 does
not acquire any valid right, title and interest over the
suit schedule property. Therefore, he has no right to
execute sale deed in favour of his wife under
registered sale deed dated 13/1/2003 and by virtue of
the said sale deed, defendant no.2 does not acquire
any valid title over the suit schedule property.
34. It is pertinent to note that, Ex.D3 is dated
2/3/1995, whereas Ex.D2 is dated 13/1/2003. It
shows that alleged Ex.D3 was not at all acted upon. If
really plaintiff has executed Ex.D3 in favour of
defendant no.1 to sell the suit schedule property, then
38 O.S. 5937/2003
defendant no.1 could have sold suit schedule property
within a reasonable time, but it shows that he has not
at all sold the suit schedule property on the basis of
alleged Ex.D3 and he has kept quiet for about 8 years.
This circumstances also creates much doubt about
genuineness of Ex.D3.
35. It is also important to note that, defendant
no.2 is the wife of defendant no.1. Defendant no.2 has
not adduced any cogent evidence on record to show
that what was the reasons for the defendant no.1 to
sell the suit schedule property in favour of his wife
who were residing togther. Further, evidence on
record clearly shows that defendant no.2 is a
Government servant. Suit schedule property is a
agricultural land. It appears that prior to purchase of
the suit schedule property, defendant no.2 who is a
Government servant has not obtained any permission
from the Government to purchase the agricultural
land since defendant no.2 is not an agriculturist. It
appears that by violating the provisions of Land
39 O.S. 5937/2003
Reforms Act, Ex.D2 came into existence. This
circumstance also creates much doubt about
genuineness of Ex.D2 and Ex.D3. In this case,
defendant no.2 has utterly failed to prove due
execution of Ex.D3. Under such circumstances,
defendant no.1 had no right to execute the sale deed
in favour of defendant no.2 who is his wife in respect
of suit schedule property. Hence on the basis of
alleged sale deed, defendant no.2 does not acquire any
valid right over the suit schedule property. Admittedly,
during the pendency of this suit, suit schedule
property has been acquired and BDA has taken
possession of the suit schedule property. The
documents produced by the plaintiff clearly shows
that at the time of taking possession of the suit
schedule property, plaintiff was in possession and
enjoyment of the suit schedule property.
36. In this case plaintiff has produced copy of
the notice issued by the BDA which is marked as
Ex.P1. It shows that BDA has issued notice after
40 O.S. 5937/2003
acquisition of the suit schedule property. In Ex.P1, the
name of the plaintiff is mentioned as a owner of the
suit schedule property. In this case plaintiff also
produced award passed by BDA which is marked as
Ex.P3. In this Ex.P3 also, the name of the plaintiff is
mentioned as kathedar and anubhavadar. Hence from
the documents produced by the plaintiff it is much
clear that, at the time of taking possession of the suit
schedule property by the BDA, the plaintiff was in
possession of the suit schedule property. BDA has
not issued any notice to defendant no.2 after
acquisition of the suit schedule property. On the other
hand, BDA has issued notice to plaintiff calling for his
objection. Hence from the documents produced by the
plaintiff, it is much clear that, plaintiff is the owner of
the suit schedule property. Further, from the
evidence on record it is much clear that plaintiff has
not executed GPA as per Ex.D3 as contended by
defendants 1 and 2. In this case, defendant no.1 and
2 have not proved the due execution of Ex.D3.
41 O.S. 5937/2003
Further, defendants 1 and 2 also not produced alleged
agreement of sale and affidavit which are said to have
been executed by plaintiff in favour of defendant no.1.
Hence from the evidence on record, it is much clear
that Ex.D3 is not a genuine document and it is
fraudulent document. Hence, sale deed executed by
defendant no.1 in favour of defendant no.2 on the
basis of Ex.D3 has no legal sanctity in the eye of law.
Hence, no much importance could be attached to
Ex.D2 since defendant no.1 was not the agent of
plaintiff. Defendants utterly failed to prove that after
receiving entire sale consideration amount from
defendant no.1, plaintiff has executed agreement of
sale coupled with GPA and affidavit in favour of
defendant no.1 in respect of suit schedule property.
Further, defendant no.1 and 2 also failed to prove that
defendant no.1 is the agent of plaintiff. Further,
defendants also failed to prove that during the talk the
plaintiff has snatched away the original agreement of
sale, GPA and affidavit from the defendants 1 and 2.
42 O.S. 5937/2003
37. In this case, defendants have utterly failed
to prove the due execution of Ex.D3. Hence defendant
no.1 had no right to execute sale deed in favour of
defendant no.2 as per Ex.D2 and by virtue of the said
Ex.D2, defendant no.2 does not acquire any valid
right, title and interest over the suit schedule
property. On the other hand, evidence on record
clearly shows that plaintiff is the absolute owner of
suit schedule property and he has not executed Ex.D3
in favour of defendant no.1. Plaintiff proved issue
no.1, whereas defendants failed to prove additional
issues 1 to 3. Accordingly, I answer issue no.1 in the
affirmative and additional issue no.1 to 3 in the
negative.
38. ISSUE NO.7: Defendants contended that
plaintiff has not paid proper court fee on the reliefs
sought by the plaintiff. It appears from the evidence
on record the plaintiff has valued the suit under
Section 24(b) of Karnataka Court Fee and Suit
Valuation Act and paid court fee under the said
43 O.S. 5937/2003
section. Hence, plaintiff has paid proper court fee on
the relief sought for. In this case, there is no contra
evidence to show that court fee paid by the plaintiff is
insufficient and defendants have not adduced any
evidence in this regard. The evidence on record clearly
shows that plaintiff has paid proper court fee on the
relief sought for. Accordingly, I answer issue no.7 in
the affirmative.
39. ISSUE NO.8: In this case plaintiff sought
for the relief of declaration that he is the absolute
owner of suit schedule property and also sought for
the relief of declaration that defendant no.1 is not the
agent of plaintiff and defendant no.1 has no power to
act as a agent of plaintiff in respect of the suit
schedule property and any acts if any done by
defendant no.1 is not binding on the plaintiff and also
declare that defendant no.1 and are not entitled for
the award amount in respect of the suit schedule
property. While answering issue no.1, it is held that
plaintiff is the absolute owner of suit schedule
44 O.S. 5937/2003
property. While answering additional issue no.1 to 3,
it is held that defendants have failed to prove that
after receiving entire sale consideration amount from
defendant no.1, plaintiff has executed agreement of
sale coupled with GPA and affidavit in favour of
defendant no.1 in respect of suit schedule property.
Further it is held that defendant no.1 is not the agent
of plaintiff and hence defendant no.1 has no authority
to execute sale deed in favour of defendant no.2 in
respect of the suit schedule property. In this case
plaintiff also failed to prove that plaintiff has snatched
away the original agreement of sale, GPA and affidavit
during the talk with defendant no.1 and 2.
40. In this case, defendant no.1 and 2 claiming
their title over the suit schedule property on the basis
of Ex.D2 and Ex.D3. It is an admitted fact that
defendant no.2 is the wife of defendant no.1. In this
case, defendant no.2 has utterly failed to prove the
due execution of Ex.D3. Hence, from the evidence on
record it is much clear that, plaintiff has not at all
45 O.S. 5937/2003
executed Ex.D3 in favour of defendant no.1 in respect
of suit schedule property. In this case defendant no.1
and 2 also failed to prove that they have paid sale
consideration amount in respect of suit schedule
property to the plaintiff. From the evidence on record,
it is much clear that, Ex.D3 is not a genuine
document and hence defendant no.1 had no right to
execute sale deed as per Ex.D2 in favour of his wife
who is defendant no.2. Hence, defendant no.2 does
not acquire any valid right, title and interest over the
suit schedule property on the basis of alleged Ex.D2.
The evidence on record clearly shows that defendant
no.1 is not the agent of plaintiff and plaintiff has not
executed any power of attorney in favour of defendant
no.1. Further, in this case defendants no.1 and 2 have
not produced alleged agreement of sale and affidavit
which are said to have been executed by plaintiff in
favour of defendant no.1. Apart from that, defendant
no.1 and 2 also failed to prove that they have paid
sale consideration amount to the plaintiff at the time
46 O.S. 5937/2003
of execution of the GPA. As already stated Ex.D3 is
not a genuine document. Defendant no.2 has failed to
prove due execution of Ex.D3 in accordance with law.
Hence, Ex.D3 is not a genuine document and it is a
fraudulent document and on the basis of said
fraudulent document i.e., Ex.D3, the sale deed i.e,
Ex.D2 came into existence. Hence no much
importance could be attached to Ex.D2 since
defendant no.1 is not the authorized agent of the
plaintiff. Hence defendant no.1 and 2 are no way
concerned to the suit schedule property and they have
not acquired any valid right, title and interest over the
suit schedule property. On the other hand, evidence
on record clearly shows that plaintiff is the absolute
owner of suit schedule property. Hence plaintiff is
entitled for the relief of declaration that he is the
owner of suit schedule property. Further, plaintiff is
also entitled for the relief of declaration that defendant
no.1 is not his agent and he has no right or authority
to act as agent of plaintiff in respect of the suit
47 O.S. 5937/2003
schedule property. Further, plaintiff is also entitled for
the relief of declaration that defendants 1 and 2 are
not entitled to the award amount in respect to the suit
schedule property.
41. Hence plaintiff is entitled for the reliefs as
sought for. Plaintiff proved issue no.8. Accordingly, I
answer issue no.8 in the affirmative.
42. ISSUE NO.9: From my above discussions
and reasoning, the suit of the plaintiff deserves to be
decreed. In the result, I pass the following:
The suit of the plaintiff is hereby
decreed.
It is declared that plaintiff is the
owner of suit schedule property.
Further it is declared that
defendant no.1 is not the agent of
plaintiff and defendant no.1 has no
power or authority to act as an
agent of plaintiff in respect of suit
schedule property and acts if any
48 O.S. 5937/2003
of the defendant no.1 is not
binding on the plaintiff.
Further it is declared that
defendant no.1 and 2 are not
entitled for award amount in
respect of suit schedule property.
Under the facts and circumstances
of the case, there is no order as to
costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 17th day of October 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 R.Jayaram
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 M.S.Kaveramma 49 O.S. 5937/2003
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Notice issued by BDA Ex.P 2 Award notices issued by BDA Ex.P 3 Certified copy of the award passed in respect of suit schedule property Ex.P 4 RTC extract Ex.P 5 RTC extract Ex.P 6 Another notice issued by BDA Ex.P 7 CC of sale deed dated 13/1/2003 Ex.P 8 To RTC extracts Ex.P 13 Ex.P 14 Cc of Mutation register Ex.P 15 Tax paid receipts Ex.P 16 Mutation Register Extract Ex.P 17 To RTC extracts Ex.P 22
4. List of the documents marked for the defendants:
Ex.D1 Death certificate Ex.D2 Original sale deed dated 13/1/2003 Ex.D3 General Power of Attorney Ex.D4 to 8 RTC extracts Ex.D11 Ex.D12 and Mutation Register Extracts Ex.D13 Ex.D14 Form No.15 Ex.D15 Form No.16 50 O.S. 5937/2003 Ex.D16 and Tax paid receipts Ex.D17 Ex.D18 Endorsement issued by Tahasildar Ex.D19 Genealogical tree Ex.D20 to Acknowledgements issued by BDA Ex.D23 [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
17/10/2017 Plaintiff-KS D1-Dead D2-MAK D3-SY For Judgment....
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby decreed.
It is declared that plaintiff is the owner of suit schedule property. Further it is declared that defendant no.1 is not the agent of plaintiff and defendant no.1 has no power or authority to act as an agent of plaintiff in respect of suit schedule property and acts if any of the defendant no.1 is not binding on the plaintiff. Further it is declared that defendant no.1 and 2 are not entitled for award amount in respect of suit schedule property.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.53 O.S. 5937/2003 54 O.S. 5937/2003
fdfdf