Bangalore District Court
B.K. Manju vs The Association Of Theological on 5 January, 2019
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 5th day of January, 2019.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.3935/2009
PLAINTIFF : B.K. Manju,
S/o Late B.R. Krishnappa,
Aged 32 years,
R/at Bandekodigenahalli Village &
Post, Jala Hobli,
Bengaluru North Taluk.
(By Sri T.K. Rajagopal, Advocate)
VS.
DEFENDANTS : 1. The Association of Theological
Education by Extension,
(A Registered Association under the
Karnataka Societies Act)
Registered Office: No.7/11 -2,
1st Main, 13th Cross,
Vasanthanagar,
Bengaluru-560 052.
Represented by its Director
Dr.David Samuel
2 O.S.No.3935/2009
2. Smt. R. Kusuma,
W/o Gangadhara Murthy,
Aged about 42 years,
R/at No.243, 53rd Cross,
III Block, Rajajinagar,
Bengaluru-560 010.
(D1 by Sri P.A.
D2 by Sri G.K.M., Advocates)
Date of Institution of the suit : 12.06.2009
Nature of the suit : Suit for Declaration and
Possession
Date of commencement of : 20.06.2011
recording of the evidence
Date on which the Judgment was : 05.01.2019
pronounced
Total Duration Years Months Days
09 06 23
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The plaintiff has filed this suit for the following reliefs:
a) Declaring that plaintiff is entitled to the vacant possession of the suit schedule premises coupled with the 3 O.S.No.3935/2009 direction to the defendant Association to quit and deliver the vacant possession of the suit schedule premises to the plaintiff.
b) To declare that Gift Deed dated 12.12.2005 alleged to have been executed by the said Mrs. Daisy Shanthappa in favour of the defendant Association is void abinitio and non-est in the eye of law and as such it is not binding on the plaintiff.
c) A permanent injunction restraining the defendant Association, its functionaries or any other person whomsoever empowered by it and acing at its behest from alienating/disposing off the suit schedule premises.
d) To grant such other relief as this Hon'ble Court may deem fit to grant in the circumstances of the case, in the interest of justice.
2. The brief facts of the plaintiff's case is that, suit schedule property was originally belonged to one Mr. J.A.Shanthappa and he died leaving behind his wife Smt. Daisy Shanthappa and said Daisy Shanthappa was alone legal heir of the said deceased Shanthappa as a wife and after the death of Shanthappa, Smt. Daisy Shanthappa succeeded to the estate of the deceased J.A.Shanthappa. Smt. Daisy Shanthappa due to financial constraint was forced to sell the suit schedule property 4 O.S.No.3935/2009 and plaintiff came to know that suit schedule property is for sale and after the mutual discussions with Smt. Daisy Shanthappa, there was an agreement of sale dated 26.11.2005 wherein plaintiff agreed to purchase the suit schedule property from Daisy Shanthappa and in terms of the agreement, the price of the schedule premises is fixed at Rs.30,00,000/- and in pursuance of the sale agreement dated 26.11.2005, a registered sale deed came to be registered in the office of the Sub-Registrar, Gandhinagar, Bengaluru on 17.02.2006 for the suit schedule property. Daisy Shanthappa, the vendor of the plaintiff has received the sale consideration amount as per the sale deed at page No.5 and after the execution of the sale deed, Daisy Shanthappa having no other alternative accommodation, sought the permission of plaintiff to stay in the suit schedule property till she got alternative accommodation and the same was agreed by the plaintiff and she was residing in the schedule premises. Further it is submitted by the plaintiff that, in the month of June 2006, he requested his vendor Smt. Daisy Shanthappa to vacate the suit schedule premises and to deliver vacant possession of the 5 O.S.No.3935/2009 same. But she pleaded her problems and sought for some more time to vacate the same. By that time, one person came there and introduced himself that he is director of the first defendant and the said premises was gifted to the first defendant association under a registered gift deed dated 12.12.2005 by Daisy Shanthappa and he furnished the xerox copy of the said gift deed to the plaintiff. Then after enquiry, Smt. Daisy Shanthappa responded that she had not gifted the suit schedule premises to the first defendant. When plaintiff tried to take possession of the suit schedule premises, the defendant Trust, i.e., director of the defendant Trust summoned the staff of the defendant Trust and all of them manhandled the plaintiff and plaintiff could not take possession of the suit schedule premises. He further contends the director threatened the plaintiff that, if he attempts to take possession of the suit schedule premises from Daisy Shanthappa, the consequences will be very serious and the vendor Daisy Shanthappa tendered her apology to the plaintiff and she told that there is some foul play by the defendant Trust director and she has not gifted the property on 12.12.2005. He further 6 O.S.No.3935/2009 submits that before he purchase the suit schedule property he issued a public notice on 07.12.2005 in the English daily Deccan Herald and nobody including the defendant has lodged any complaint or objections for purchase of the said premises. Even the first defendant has also not lodged any objection to purchase the suit schedule premises by the plaintiff, on the basis of the gift deed. He further contends that, his vendor Daisy Shanthappaha has not executed the gift deed dated 12.12.2005 out of her free volition and free will and not knowing the contents therein. On the other hand, the said director of the defendant association might have misrepresenting the fact by not revealing the type of the document, presented for registration before the Registrar and got registered the document and the gift deed is void abinitio incapable of conferring any right, title and interest to the defendant association and the said gift deed must have out come of the pressure brought on her and subjecting her to all sorts of restraint to force her to subscribe her signature to the gift deed and also execute the same in favour of the first defendant, which is a tainted document and obtained with fraud, misrepresentation 7 O.S.No.3935/2009 and other vitiating factors. The plaintiff further contends that, Smt. Daisy Shanthappa was in badly need of money and she has no intention of gifting away the suit schedule premises under the gift deed dated 12.12.2005 and she was having intention to sell the property for her financial constraints and the gift deed suffers from major, vital and incurable legal flaw and it is not attested as required under law and the same is not valid. The plaintiff claims that he has acquired title under the sale deed dated 17.02.2006 and hence he seeks for possession and also to declare that the gift deed dated 12.12.2005 is void abinitio.
3. In pursuance of the suit summons, the defendant No.1 has appeared before Court and filed detailed written statement denying all the plaint averments and contended that, Daisy Shanthappa has executed gift deed dated 12.12.2005 in favour of the defendant association out of her free will and the khatha of the suit schedule property stands in the name of defendant No.1 and for the pubic notice, including Daisy Shanthappa and defendant No.1 have issued objection not to register the sale deed and defendant No.1 association is in 8 O.S.No.3935/2009 possession and enjoyment of the suit schedule premises and the sale deed obtained by the plaintiff is out of fraud and it is not a genuine document and the property has been sold to second defendant on 20.05.2010 and at present the second defendant is owner in possession and enjoyment of the suit schedule premises. The suit of the plaintiff is barred by limitation and the court fee paid by the plaintiff is insufficient and the sale deed obtained by the plaintiff is out of fraud, misrepresentation and all these things. Hence seeks for dismissal of the suit.
4. The defendant No.2 also filed detailed written statement in support of the first defendant concern and contends that she is owner in possession and enjoyment of the suit schedule premises by virtue of the sale deed dated 20.05.2010 and seeks for dismissal of the suit.
5. On the basis of the above pleadings, the following issues were framed:-
1. Whether plaintiff proves his title over the suit property?9 O.S.No.3935/2009
2. Whether the plaintiff proves that on the request of Mrs. Daisy Shanthappa, she was in permissive possession of the suit schedule property?
3. Whether the plaintiff proves that the alleged gift deed dt. 12.12.2005 executed by Mrs. Daisy Shanthappa in favour of the defendant is tainted with fraud, misrepresentation and other vitiating factors as pleaded in para No.19 of the plaint?
4. Whether the plaintiff proves cause of action?
5. Whether the defendant proves that late J.A. Shanthappa has sold southern portion of the suit schedule property in favour of Smt. Daisy Shanthappa and after his death, she succeeded to northern portion also?
6. Whether the defendant proves that it has disposed off plaint schedule property in favour of Smt.Kusuma and she is a necessary party?
7. Whether the suit is in time?
8. Whether the court fee paid is sufficient?
9. What order or decree?
Addl. Issue:
1. Whether the plaintiff proves that Mrs. Daisy Shanthappa continued in actual possession of property subsequent to the alleged sale deed, dt.17.2.06 with the permission of plaintiff?10 O.S.No.3935/2009
6. In order to prove the case, the plaintiff himself examined as P.W.1 by reiterating the plaint averments and one Mr.A.C. Ramesh is examined as P.W.2 and Ex.P.1 to P.8 are marked. Ex.P.1 is original registered sale deed dated 17.02.2006, Ex.P.2 is encumbrance certificate, Ex.P.3 is paper publication, Ex.P.4 is xerox copy of gift deed dated 12.12.2005, Ex.P.5 and P.6 are NC endorsements, Ex.P.7 is memorandum of association and Ex.P.8 is registration certificate. On behalf of the defendants, 4 witnesses have been examined as D.W.1 is Leelavathi Manasseh, D.W.2 is second defendant, D.W.3 is Gangadhara Murthy, who is husband of defendant No.2, D.W.4 is one Mr. A.G.Ashok, who is attestor of the gift deed, and Ex.D.1 to D.23 are marked. Ex.D.1 is copy of board resolution passed by first defendant, Ex.D.2 is copy of lease-cum-sale agreement, Ex.D.3 is sale deed dated 21.11.1963, Ex.D.4 is death certificate of Shanthappa, Ex.D.5 is copy of sale deed dated 07.10.1988 executed by Daisy Shanthappa in favour of the defendant, Ex.D.6 is statement of objections filed by Daisy Shanthappa, Ex.D.7 is certified copy of order passed in Writ Petition No.2728/2008, 11 O.S.No.3935/2009 Ex.D.8 is death certificate of Daisy Shanthappa, Ex.D.9 is copy of acknowledgment, Ex.D.10 is letter written to the Commissioner, Bengaluru Development Authority, Ex.D.11 is copy of General power of attorney dated 25.02.2010 executed by first defendant association in favour of D.W.1, Ex.D.12 is copy of registered sale deed dated 22.04.2010, Ex.D.13 is certified copy of sale deed dated 20.05.2010, Ex.D.14 is proceedings of BDA, Ex.D.15 is khatha extract, Ex.D.16 is khatha certificate, Ex.D.17 is khatha extract, Ex.D.18 is khatha certificate, Ex.D.19 and D.20 are property tax receipts, Ex.D.21 is khatha certificate, Ex.D.22 is khatha extract, Ex.D.23 is tax paid receipt.
7. Heard the arguments and perused the records.
8. The counsel appearing for the plaintiff has vehemently submitted that, Smt. Daisy Shanthappa has executed Ex.P.1 in favour of the plaintiff and defendant No.1 has not proved the gift deed in accordance with law and court fee paid by him is sufficient and the suit filed by the plaintiff for the possession of the suit schedule property is well maintainable, as 12 O.S.No.3935/2009 the plaintiff is not a signatory to Ex.P.4 and even without the plaintiff having seek the cancellation of the gift deed, it is sufficient, if he seeks that it is not binding on the plaintiff and further he submits that, it is not necessary to seek possession without declaration. It is sufficient if he seeks for possession and he relied upon various decisions.
9. The counsel for the defendant has vehemently submitted that, the alleged sale deed is not executed by Daisy Shanthappa and suit of the plaintiff is not within limitation and suit is not properly framed and without the relief of declaration of title only relief of possession cannot be granted and the alleged sale deed executed by Daisy Shanthappa will not confer any title in favour of the plaintiff, because much earlier to the sale deed, the property was gifted by Daisy Shanthappa to the first defendant association and as on the date of the alleged sale deed the vendor Daisy Shanthappa was not having any right, title and interest over the suit schedule property. Hence she cannot convey any right, which she did not possess and there is no cause 13 O.S.No.3935/2009 of action for the suit and the suit is also not properly valued and with other contentions he sought for dismissal of the suit.
10. My finding on the above issues are :-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: Does not survive for consideration Issue No.6: Does not survive for consideration Issue No.7: The suit is barred by limitation Issue No.8: In the negative Issue No.9: As per final order, Addl. Issue No.1: Not answered for the following:-
REASONS
11. Issue No.1:- Admittedly, the suit of the plaintiff is for the relief of declaration of possession and to declare that the gift deed dated 12.12.2005 is void abinitio. It is golden principle of civil law that, plaintiff must stand on his own legs, that means he should prove his case and he should not depend upon the weakness of the other side. Here, the plaintiff claims possession 14 O.S.No.3935/2009 of the suit schedule property by virtue of the sale deed dated 17.02.2006 marked at Ex.P.1. It is undisputed fact that, suit schedule property was originally belonged to Smt. Daisy Shanthappa. It is also not in dispute that defendant No.1 is also claiming schedule property on the basis of gift deed dated 12.12.2005 produced at Ex.P.4 and plaintiff is also claiming the same property by virtue of the sale deed dated 17.02.2006, which is marked at Ex.P.1. When the plaintiff knows that there is a dispute with regard to title, cleverly he has not sought for declaration of title. His relief of declaration of possession will not survive. In order to recover possession, he must prove his title.
12. Here, in plaintiff claims title under Ex.P.1, which is surrounded by doubts, because Ex.P.1 is a document dated 17.02.2006, but the same is registered on 27.02.2006. Of course, the document executed can be presented for registration within 4 months from the date of execution. But no explanation is forthcoming in the plait that why the document dated 17.02.2006 is registered on 27.02.2006. That apart, in the 9th page of Ex.P.1, one Mr. Pradeep Patil signed as 'drafted by' and he has put his 15 O.S.No.3935/2009 signature on 28.02.2006. I have carefully examined Ex.P.1. The signatures of Daisy Shanthappa in page No.1 to 8 are different and signature of Daisy Shanthappa in page No.9 and on the back of second page before photograph, the signature of Daisy Shanthappa is different. I have carefully examined the signatures. These two signatures, i.e., signature over backside of second page and in the 9th page and the remaining signatures will not match at all. Because the flow of the pen force and pen grip of the signature on page No.1 to 8 and other two signatures are different. Apart from the signature, the passing of consideration in Ex.P.1 is also very doubtful, because in page 5 there is recital with regard to passing of consideration. The suit schedule property is purchased for a total consideration of Rs.30,00,000/- and out of Rs.30,00,000/-, Rs.2,50,000/- is stated to have been deposited in the FD. But except the recitals, no documents are forthcoming before Court and even Rs.2,00,000/- is stated to have been paid by way of cheque and plaintiff has not produced his statement of accounts for passing of consideration mentioned in the cheque. The age of the vendor, i.e., Daisy Shanthappa is 16 O.S.No.3935/2009 most important at this juncture, because she is aged about 92 years as on the date of Ex.P.1 and why a person who is aged about 92 years and having no children, has received cash of Rs.25,50,000/- and it is even unimaginable that an aged lady, who is aged about 92 years is capable of counting Rs.25,50,000/- and safety of that amount is also very much concerned. Even for a moment if we consider that Ex.P.1 is registered in accordance with law and the consideration is passed, Ex.P.1 is dated 17.02.2006 which is registered on 27.02.2006, but much prior to Ex.P.1, Ex.P.4 registered gift deed was executed in favour of the defendant No.1. When as on the date of execution/registration of Ex.P.1, the vendor did not possess title and how can she transfer title in favour of the purchaser, i.e., plaintiff. The same is not explained.
13. Coupled by these documentary evidence, the evidence of P.W.1 and P.W.2 also creates doubt in the mind of the Court regarding true execution of Ex.P.1. P.W.2 has been examined by the plaintiff to prove the execution of Ex.P.1, who has in his chief-examination at para 5 of his affidavit stated that: 17 O.S.No.3935/2009
"Said Daisy Shanthappa and plaintiff signed the sale deed dated 27.02.2006 in the residence of the said Daisy Shanthappa at Vasanthanagar, Bengaluru."
14. If we consider Ex.P.1, it is a registered document registered in the Sub-Registrar Office, Gandhinagar, Bengaluru and in Ex.P.1 it is clearly mentioned in backside of the second page that this document is presented for registration on 27.02.2006 at 4.07.11 p.m. and this clearly goes to show that the document is signed at the Sub-Registrar Office. P.W.2 also stated in his affidavit that, he do not know what is the amount paid to Daisy Shanthappa and in para 10 of his affidavit he has stated that:
"when they went to the house of Daisy Shanthappa on 27.02.2006 she had with her the said sale deed got drafted."
This is also very much important for the reason, Daisy Shanthappa as on the date of Ex.P.1 is aged about 92 years and no materials have been placed before Court that she was able to handle her affairs independently. It is very common, the person 18 O.S.No.3935/2009 aged about 92 years even cannot walk freely and cannot take decisions independently. When that being the case, it is impossible to believe that she was having the draft sale deed with her and P.W.2 in his cross-examination in page 8 para 13 has stated that:
"After signing Ex.P.1 sale deed I went back home. Others went to the office of Sub-Registrar."
This shows that the document Ex.P.1 not came into existence as pleaded by the plaintiff. Without proving the passing of consideration and also due execution of Ex.P.1, it cannot be said that plaintiff has acquired title and more particularly, it is his own pleading in para 12 of his plaint that:
"In the month of June 2006, he called Daisy Shanthappa to vacate the suit schedule premises and to deliver vacant possession of the same. But she pleaded her problems and sought for time. At that time, the person attached to defendant No.1 came to the premises and showed the gift deed."
So this clearly goes to show that, when he visited the premises, he came to know about the gift deed and at the same 19 O.S.No.3935/2009 time Daisy Shanthappa also came to know about Ex.P.4 and Daisy Shanthappa died on 30.08.2007. According to the admission of P.W.1 during his cross-examination that, he came to know about Ex.P.4, when they visited the Sub-Registrar Office for registration of Ex.P.1. When Daisy Shanthappa knows or came to know about Ex.P.4, she has not questioned the same till her death and she died without questioning Ex.P.4-document and from June 2006 till death of Daisy Shanthappa, plaintiff has not chosen to issue legal notice to his vendor Daisy Shanthappa to take steps for cancellation of the gift deed. When he admits in his cross- examination that he came to know about the document, i.e., Ex.P.4 on 27.02.2006, then also he has not taken any steps to cancel Ex.P.4. The date of filing of the suit is 12.06.2009 and as per the admission given by the plaintiff that on 27.02.2006 he came to know about Ex.P.4, i.e., gift deed. As per Article 56 or 58 of Limitation Act, to obtain any declaratory relief, 3 years is limitation. Here when he claims that he came to know about Ex.P.4 on 27.02.2006, but suit is filed on 12.06.2009 after the lapse of 3 years and on that aspect also the suit is not within 3 20 O.S.No.3935/2009 years. It is admitted fact that, as on the date of cause of action for filing the suit Daisy Shanthappa was alive, but the plaintiff has not chosen to file a suit against Daisy Shanthappa also and even he has not taken any legal steps against Daisy Shanthappa to seek for cancellation of this gift deed. To seek for possession of the suit schedule property, first he should satisfy the Court that he is owner of the suit schedule property and to obtain the relief of declaration that gift deed dated 12.12.2005 is void abinitio in the eye of law, he must satisfy that he is owner of the property. When the plaintiff intentionally not sought for declaration of his title, he is also not entitled for possession. Admittedly, the gift deed is initial document and Ex.P.1 is later document. As on the date of execution of Ex.P.1, his vendor Daisy Shanthappa was not having the title. When she is not having title, she cannot transfer the same to the plaintiff also. The pleading that Ex.P.4- gift deed is a document obtained by defendant No.1 by misrepresentation, fraud and all these things, cannot be considered because, plaintiff has no locus standi to challenge or plead all these aspects, because Daisy Shanthappa was alive 21 O.S.No.3935/2009 when the cause of action for the suit was arisen. She never stated or never challenged the gift deed, as admitted by the plaintiff and without seeking the relief of declaration of title, he cannot ask for possession also. Because he steps into the shoes of the owner. Unless and until he proves that he has acquired valid title, he cannot seek for the reliefs as claimed in the suit. In support of my finding I rely upon the decision reported in ILR 2017 KAR 3387 (Abdulsab Nannesab Totad @ Jekinkatti, since deceased by his LRs vs. Sahadevappa Mallappa Suragond, since deceased by his L.Rs. and others wherein it held that"
"Unless the title is proved, relief of possession cannot be granted."
14. From all these points, it is clear that plaintiff has not proved his title over the suit schedule property. Hence issue No.1 is held in the 'negative'.
15. Issue No.2:- It is already discussed and hold that, as on the date of execution of Ex.P.1, Daisy Shanthappa was not the 22 O.S.No.3935/2009 owner of the suit schedule premises in view of Ex.P.4. When such being the case, permission of the plaintiff to Daisy Shanthappa to be in possession of the suit schedule property does not arise at all. Because, when Daisy Shanthappa herself did not possess title, she cannot transfer valid title and when the plaintiff did not possess valid title, no question of permitting Daisy Shanthappa will arise. Hence this issue is held in the 'negative'.
16. Issue No.3:- The plaintiff has pleaded that Ex.P.4- gift deed dated 12.12.2005 executed by Daisy Shanthappa in favour of defendant No.1 is out of misrepresentation and fraud and the same is not executed out of her free will , volition and all these facts. Now as per his own admission in pleadings, Daisy Shanthappa came to know about Ex.P.4 in June 2006. But herself has not challenged Ex.P.4 and the act of misrepresentation, fraud, free consent all these will be within the knowledge of Daisy Shanthappa. It is not the case of the plaintiff that, she has disclosed that this gift deed is executed out of misrepresentation, fraud and free consent. Nowhere in his plaint, he has stated that Daisy Shanthappa has stated all these things 23 O.S.No.3935/2009 and it is his own assumption and presumption that Ex.P.4 is product of fraud, misrepresentation and all these things. He has no locus standi at all, because all these facts are not within the knowledge of the plaintiff and it should be within the knowledge of Daisy Shanthappa only and even after knowing about Ex.P.4, she has not chosen to initiate any legal action against defendant No.1 and she has not issued legal notice to the defendant No.1 that Ex.P.4 is obtained under misrepresentation, fraud and all these things and plaintiff has not pleaded and proved the elements of fraud and misrepresentation and hence I hold issue No.3 in the 'negative'.
17. Issue No.4:- To consider cause of action, some dates are very much relevant. The date of Ex.P.1 is 17.02.2006/27.02.2006 and date of suit is 12.06.2009 and Daisy Shanthappa died on 30.08.2007 and as per plaint, cause of action for the relief of declaration of possession is on 07.02.2006 and for the relief of injunction, the cause of action is shown on 17.05.2009. Admittedly, this is suit for vacant possession and also for declaration of gift deed dated 12.12.2005 as null and void. So 24 O.S.No.3935/2009 far as first relief of declaration that plaintiff is entitled to the vacant possession is concerned, any declaratory relief should be sought within 3 years from the date of cause of action. Here as per his own pleading in para 12, he came to know about Ex.P.4 in June 2006 and as per his admission during cross-examination, he came to know about Ex.P.4 on 27.02.2006. The suit is filed on 12.06.2009, that means after lapse of 3 years and the plaintiff seeks for possession and also declaration that Ex.P.4 is null and void. Even after execution of Ex.P.1, Daisy Shanthappa was alive, but she has not challenged Ex.P.4. When Daisy Shanthappa has not challenged Ex.P.4, plaintiff has no right to challenge Ex.P.4, because under Ex.P.1 plaintiff has not acquired any valid title. When he has not acquired any valid title, he has no cause of action against the defendants for the reliefs sought in the plant. Hence issue No.4 is held in the 'negative.'
18. Issue No.5:- This issue will not survive for consideration, because suit schedule property is not pertaining to issue No.4. The dispute between the parties is that, suit schedule property is that whether suit schedule property is validly conveyed 25 O.S.No.3935/2009 under Ex.P.4 in favour of defendant No.1 or validly conveyed under Ex.P.1. So issue No.5 cannot be considered when Daisy Shanthappa is owner of the suit schedule property and there is no dispute that Daisy Shanthappa was the owner of the property. Hence issue No.5 will not survive for consideration.
19. Issue No.6:- This issue is also will not survive for consideration, because Smt.Kusuma is impleaded as defendant No.2 and she has also appeared before Court by filing written statement. Hence when she has appeared before Court, this issue will not survive for consideration.
20. Issue No.7:- Admittedly, this suit is for the relief of declaration of possession and declaration of Ex.P.4 gift deed dated 12.12.2005 is void abinitio and non-est in the eye of law. The plaintiff himself has admitted in his cross-examination that, he came to know about Ex.P.4 on 27.02.2006 and even in para 12 of the plaint he pleaded that, during June 2006, he came to know about Ex.P.4. Ex.P.4 is obtained by the plaintiff on 18.03.2006 as per the endorsement of the Sub-Registrar Office, Gandhinagar, 26 O.S.No.3935/2009 Bengaluru. As per article 56 and 58 of Limitation Act, to obtain declaratory relief the limitation is 3 years from the date of knowledge. Here when he has categorically admitted that on 27.02.2006 he got knowledge about Ex.P.4, the suit should have been filed within 3 years from 27.02.2006 by making the vendor as party. But the suit is filed on 12.06.2009 after lapse of 3 years. Hence the suit is barred by limitation and I answer issue No.7 in the 'negative'.
21. Issue No.8:- Th suit of the plaintiff is for the relief of possession and also declaration of gift deed dated 12.12.2005 as null and void. When the plaintiff seeks for possession of the property by saying he is owner of the said property, he has to pay court fee on the market value of the property or on Rs.1,000/- which ever is higher as per Section 24(a) of the Karnataka Court Fees & Suits Valuation Act. But here, plaintiff has valued the suit U/Sec.24(b) of Karnataka Court Fees & Suits Valuation Act, which is for declaration and consequential injunction. Section 24(b) is not applicable, but Section 24(a) is applicable and according to his own document, i.e., Ex.P.1, the value of the property is 27 O.S.No.3935/2009 Rs.30,00,000/- and he has to pay court fee on Rs.30,00,000/-. Here, plaintiff valued the suit U/Sec.24(b) of Karnataka Court Fees & Suits Valuation Act, for Rs.30,00,000/-, on ½ of the market value, that is not provided U/Sec.24(a).
22. Apart from the declaration of possession, plaintiff has also sought for the declaration of the document, i.e., gift deed dated 12.12.2005 is null and void. The argument canvassed by the learned counsel for plaintiff is that, plaintiff is not a signatory to Ex.P.4. Hence he need not seek for cancellation of Ex.P.4. Hence court fee for cancellation is paid U/Sec.24(d) of Karnataka Court Fees & Suits Valuation Act. But his arguments cannot be accepted for the reason, admittedly the schedule property was originally belonged to Daisy Shanthappa and both plaintiff and defendant No.1 are claiming under the same vendor and plaintiff claims suit property by virtue of Ex.P.1 and defendant No.1 claims by virtue of Ex.P.4. The argument canvassed by the counsel for the plaintiff is that, since plaintiff is not signatory to the document, he need not ask for cancellation of Ex.P.4 gift deed dated 12.12.2005, it is sufficient if he seeks it is not binding on 28 O.S.No.3935/2009 the plaintiff. But that is applicable to the cases, where the property of A is sold by B in favour of C. But here Daisy Shanthappa has conveyed the property in favour of both persons and plaintiff who claims title through Daisy Shanthappa has stepped into the shoes of the original owner. Hence the arguments canvassed by the counsel for the plaintiff, that he is not a signatory to the document and he need not seek for cancellation of the document and he need not pay court fee U/Sec.38 cannot be accepted and his valuation U/Sec.24(d) of Karnataka Court Fees & Suits Valuation Act, is incorrect and plaintiff has to value the suit U/Sec.38 of Karnataka Court Fees & Suits Valuation Act, so far as second relief is concerned. For these reasons, I hold issue No.8 in the 'negative'.
23. Addl. Issue No.1:- Since additional issue No.1 is identical to issue No.2, which is already answered in the negative, it does not require for consideration. Hence it is not answered.
24. The learned counsel for plaintiff has relied upon the decision rendered by the Hon'ble High Court reported in 2010 29 O.S.No.3935/2009 (4) KCCR 2648 (M/s. Electronics & Controls, Bengaluru vs. Karnataka Industrial Area Development Board, Bengaluru and another) with respect to the limitation, wherein it is held that:
"Limitation Act, 1963 - Articles 58 and 65 - Limitation- Where possession is claimed in a suit as a resultant consequence of declaration it would be governed by Article 65 and not Article 58 of the Limitation Act."
The said decision is not applicable to the facts and circumstances of this case, because here plaintiff has not sought for declaration of title. He has sought for declaration of the gift deed as null and void and when there is a dispute with respect to title, plaintiff should seek for declaration and without asking the declaration of title he cannot simply seek for possession. Hence the said decision is not applicable to the facts and circumstances of this case.
30 O.S.No.3935/2009
25. Another decision reported in 2018 (3) KCCR 2280 (Sri K.L. Venugopal and another vs. Smt. Vimala K. Venugopal and others), wherein it is held that:
"B. Karnataka Court Fees & Suits Valuation Act, 1958 - Section 24(b) - Suit for declaration that alleged sale deed is null and void and ot binding on plaintiffs - plaintiffs were not parties to alleged sale deed - Court fee is payable under Section 24(b)."
This is also not applicable to the facts and circumstances of the case, because plaintiff herein has sought for declaration of gift deed as null and void. The gift deed is much prior to Ex.P.1 sale deed. The vendor of the plaintiff has executed the gift deed, then the plaintiff will step into the shoes of the vendor and under such circumstances, he should seek for declaration and he cannot say that he is not signatory to the document. This aspect is already discussed with respect to court fee that, when a party who is not a signatory to the document, court fee is payable U/Sec.24(b). But when a deed is executed by the person who is not a owner, then the said decision is not applicable. But here, plaintiff who has stepped into the shoes of the owner and claiming ownership, 31 O.S.No.3935/2009 he has to pay court fee to declare the gift deed is null and void U/Sec.38 of Karnataka Court Fees & Suits Valuation Act, as already discussed. Hence it is also not applicable to the facts and circumstances of the case.
26. Another decision relied upon by the plaintiff reported in 2017 (4) KCCR 3287 (Sri Durgappa since dead represented by his LRs vs. Nagamma and others). While submitting on this decision, learned counsel for plaintiff has submitted that without seeking declaration, suit for possession is maintainable. I have gone through the said decision. It is U/Sec.6 of Specific Relief Act. When the suit is filed U/Sec.6 of Specific Relief Act, it is only question of possession and not title and it provides only for recovery of possession who has been dispossessed illegally. It is not the case of the plaintiff that he has been dispossessed illegally. He is claiming possession of the suit schedule property by virtue of the sale deed and hence without declaration of title, possession cannot be granted and the said decision is not applicable to the facts and circumstances of the case.
32 O.S.No.3935/2009
27. The other decision he has relied upon is with respect to attestation. When the plaintiff is able to prove his case, then the question of considering attestation of the gift deed will arise. Here plaintiff has not at all proved his case and he wants to rely upon the weakness of the other side, that cannot be considered. Hence other decision also not helpful to the plaintiff.
28. Issue No.9:- In view of my findings on the above issues, I proceed to pass the following:-
O RDER The suit of the plaintiff is dismissed.
No order as to costs.
Draw a decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 5th day of January, 2019.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 33 O.S.No.3935/2009 SCHEDULE Property bearing No.11, 11/1 having ID No.78 - 100 - 11 & 78 - 100 - 11/1 measuring East to West 50 ft and North to South 43 ft ground floor and the 1st floor situated on 1st Main Road, Vasanthanagar, Bengaluru-560 052, total 2150 sq. ft. bound as follows:
East by: Cross Road
West by: Private property
North by: Main Road
South by: Property belonging to Defendant Association
ANNEXURE
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: B.K. Manju
P.W.2: A.C. Ramesh
(b) Defendant's side :
D.W.1: Leelavathi Manasseh
D.W.2: R.Kusuma
D.W.3: C. Gangadhara Murthy
D.W.4: A.G. Ashok
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :34 O.S.No.3935/2009
Ex.P.1: Original registered sale deed dated 17.2.2006 Ex.P.2: Encumbrance certificate Ex.P.3: Paper publication Ex.P.4: Certified xerox copy of gift deed dated 12.12.2005 Ex.P.5 Two acknowledgments issued by police and P.6:
Ex.P.7: Certified copy of memorandum of
association
Ex.P.8: Registration certificate
(b) Defendants side : NIL
Ex.D.1: Copy o Board Resolution
Ex.D.2: Lease cum sale agreement
Ex.D.3: Copy of sale deed dated 21.11.1963ee by
J.A. Shanthappa in favour of Daisy
Shanthappa
Ex.D.4: Copy of death certificate of J.A. Shanthappa
Ex.D.5: Copy of sale deed dated 07.10.1988ee by
Daisy Shanthappa in favour of defendant
Ex.D.6: Statement of objections filed by Daisy
Shanthappa
Ex.D.7: Certified copy of order passed in Writ
Petition No.2728/2008
Ex.D.8: Copy of death certificate
Ex.D.9: Copy of acknowledgment
Ex.D.10: Letter sent to Commissioner, Bengaluru Development Authority Ex.D.11: Copy of General Power of Attorney dated 25.02.2010 Ex.D.12: Copy of registered sale deed dated 22.04.2010 Ex.D.13: Certified copy of sale deed dated 20.05.2010 Ex.D.14: Copy of proceedings of BDA 35 O.S.No.3935/2009 Ex.D.15: Khatha extract of Municipal No.11 Ex.D.16: Khatha certificate of Municipal No.11 Ex.D.17: Khatha extract of Municipal No.11/2 Ex.D.18: Khatha certificate of Municipal No.11/2 Ex.D.19 Two copies of property tax receipt & D.20:
Ex.D.21: Khatha certificate Ex.D.22: Khatha extract Ex.D.23: Tax paid receipt XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.