Bangalore District Court
Jampana Srirama Raju vs Sunanada Vani on 4 January, 2024
KABC010259732014
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
Dated this the 4th day of January, 2024
PRESENT: Sri. D.P. KUMARA SWAMY, B.Com., LL.M.,
(Name of the Presiding Judge)
O.S.NO.9435/2014
PLAINTIFF SRI JAMPANA SRIRAMA RAJU,
S/o J. Gopalakrishna Raju,
Aged about 42 years,
R/o No.759, 7th A Cross
Yelahanka New Town,
Bangalore.
[By Sri. Rajeshwara P.N., Advocate]
/Vs/
DEFENDANTS G.V. VEERASHETTY,
Since deceased and
represented by his
Ascertained LRs :
1. SUNANDA VANI,
W/o Late G.V. Veerashetty,
Aged about 72 years.
2. SMT. NANDINI SHIVAPRAKASH,
W/o Sri S.G. Shivaprakash,
Aged about 47 years
2 OS.NO.9435/2014
3. RAVI G.V.,
S/o Late G.V. Veerashetty,
aged about 44 years
4. MALATHI GIRISH,
W/o H.D. Girish,
Aged about 41 years
5. CHAITANA @ CHETHANA PRASAD,
W/o Pranava Prasad,
Aged about 36 years.
All are residing at No.74,
Vani Garden, Near CRPF Gate,
Puttenhalli Yelahanka Hobli,
Bangalore North Taluk.
6. SRI K.N. JAYAPRAKASH,
S/o Sri K. Narayana Setty,
Aged about 77 years,
R/o No.T-64, Gundappa Street
Bangalore - 04.
7. SRI M. BHAKTHAVATSALAM,
Aged 71 years,
S/o Ithya Mudappa Setty,
R/o No.28, East Circle Road,
Visveshwarapuram,
Bangalore - 04.
8. M/S VERACIOUS DEVELOPERS,
A company incorporated under the
Companies Act,
Having its office
At No.302, Oxford Chambers
Rustum Bagh
Behind Manipal Hospital,
Airport Road,
Bangalore - 560 017
Represented by its authorised
Signatory.
3 OS.NO.9435/2014
[For D-1, 2, 3, 4 & 5 by Sri R.B.
Sadashivappa, Advocate]
[For D-6 by Sri Ramamurthy,
Advocate]
[For D-7 by Sri M.J. Alva & Co.,
Advocates]
[ For D-8 by Sri R.Raja, Advocate]
Date of Institution of the suit : 05-12-2014
Nature of the Suit : Declaration,
Injunction
and Possession.
Date of commencement of recording
of evidence : 20-07-2019
Date on which the Judgment was
pronounced : 04-01-2024
Year/s Month/s Day/s
Total Duration : 09 00 29
(D.P. KUMARA SWAMY)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
4 OS.NO.9435/2014
JUDGMENT
This is a suit for declaration of title of the plaintiff over the suit property; and for consequential relief of perpetual prohibitory injunction, or in the alternative, for recovery of possession of the suit property.
2. The pleaded facts of the case of the plaintiff may be stated to the following effect:
2.1 One Sri.G.V. Veerasetty had purchased 4 acres 21 guntas of land in Sy. No. 74 of Puttenahalli village (designated as Puttenahalli Division No. 2), Yalahanka Town, Bengaluru City, which is more fully described in the A schedule of the plaint (in this judgment referred to as "the plaint A schedule property") under a registered sale deed dated 12.03.1965 bearing document No. 8003, Book-I, Vol.2481, pages 181 to 184.5 OS.NO.9435/2014
2.2 Vide conversion order dated 15.10.1992, bearing No. ALN SR (N) 64/92-93 passed by the jurisdictional Deputy Commissioner, Sri. G.V. Veerasetty got the plaint A schedule property converted from agricultural purpose to non-
agricultural purpose.
2.3 Thereafterwards, Sri. G.V. Veeraseety disposed if various bits of lands (as open plots) in the plaint A schedule property to various persons for commercial/residential purposes. 2.4 Sri. G.V. Veerasetty received entire sale consideration amount of Rs. 3,70,000/- from the defendant No. 6 Sri. K.N. Jayaprakash S/o K. Narayanasetty and executed an agreement of sale dated 19.12.1992 in respect of a piece of land in the plaint A schedule property measuring 162 feet from East to West and 115 feet from North to South (which is situated towards North of a piece of land sold by Sri. G.V. Veerasetty to one Sri. Mayur 6 OS.NO.9435/2014 Sriram; and also situated abutting Yalahanka - Doddaballapur Main Road). Sri. G.V. Veerasetty also executed a General Power of Attorney in favour of the defendant No. 6 in respect of the said transaction. Pursuant to said agreement of sale, the defendant No. 8 has executed a GPA dated 21.12.1992 in favour of the defendant No.6. In the said GPA, it is stated that the defendant No. 6 is authorised to alienate the said land and that it is irrevocable GPA.
2.5 Based on the said GPA dated 21.12.1992, the defendant No. 6 sold the said land (subject matter of said agreement of sale dated 19.12.1992 and also that of said GPA dated 21.12.1992) in favour of the defendant No. 7, under a registered sale deed dated 27.10.1995 bearing Document No. 5152/95- 96, Book-I, Vol.829, pages 1 to 11 of the office of Sub-Registrar, Yalahanka, and put the defendant No.7 in possession of the said land. Subsequently, the defendant No.6 executed a registered 7 OS.NO.9435/2014 rectification deed dated 28.06.1996 bearing document No. 907/96-97, Book-1, Vol.1413, pages 108-111 of the office of the said Sub-Registrar, concerning the said sale deed dated 27.10.1995. 2.6 Based on the said sale deed dated 27.10.1995 and said rectification deed dated 28.06.1996, the khatha in respect of the land so purchased by the defendant No.7 under the said deeds, was changed in the name of the defendant No. 7. Nobody (including Sri. G.V. Veerasetty) opposed the said change of Khatha. An entry is made in the encumbrance register regarding the said two deeds. 2.7 The defendant No. 7 divided the said land (purchased by him under said sale deed dated 27.10.1995) into portions. A piece of land measuring 160 feet from East to West and 28 feet 9 inches from North to South (carved out of said land) is more fully described in the plaint B schedule (which would be referred to as "the plaint B 8 OS.NO.9435/2014 schedule property" in this judgment). The defendant No. 7 offered to sell the plaint B schedule property. The plaintiff went forward to purchase the suit property. By that time property No.863/741D was assigned to the plaint B schedule property in the concerned Khatha register. The defendant No. 7 sold the plaint B schedule property in favour of the plaintiff and put the plaintiff in possession of the plaint 'B' schedule property. 2.8 In the meantime, the defendant No. 7 and 3 others, who had purchased various bits of lands in the plaint A schedule property from Sri. G.V. Veerasetty, had filed a bare injunction suit in O.S. No. 6254/1996 on the file of this City Civil Court (CCH-16) against Sri. G.V. Veerasetty. This City Civil Court had dismissed the said suit. Against the said judgment, the present defendant No. 7 and 3 others had preferred an appeal before the Hon'ble High Court in RFA No. 782/2008. The said appeal also came to be dismissed.
9 OS.NO.9435/20142.9 After purchase of the plaint B schedule property, the plaintiff got the khatha in respect of the plaint B schedule property changed to the name of the plaintiff. The plaintiff is in possession of the plaint B schedule property. The plaintiff is paying property tax in respect of the plaint B schedule property.
2.10 The plaintiff was advised to file bare injunction suit in respect of the plaint B schedule property. Accordingly, the plaintiff filed a bare injunction suit in respect of the plaint B schedule property on the file of this City Civil Court (XXII Additional City Civil Court) in O.S. No. 1275/2009. The said suit was dismissed by this Court holding that bare injunction suit was not maintainable. 2.11 Having lost title over the plaint B schedule property in the above stated manner, Sri. G.V. Veerasetty is estopped from contending that he is the owner of the plaint B schedule property. 10 OS.NO.9435/2014 2.12 Since Sri. G.V. Veerasetty and the defendant No. 1 to 5 claim to have entered into an agreement to develop the plaint A schedule property with the defendant No. 8, the defendant No. 8 is arrayed as a party to this suit.
2.13 Sri. G.V. Veerasetty died much prior to filing of this suit. Hence, his LRs are arrayed as defendant No. 1 to 5.
2.14 The said agreement between Sri. G.V. Veerasetty and the defendant No. 1 to 5 on the one hand and the defendant No.8 on the other hand in respect of the plaint A schedule property, if any, is not binding on the plaintiff in respect of plaint B schedule property.
2.15 Based on the said agreement for development of the plaint A schedule property, the defendant No. 4 tried to interfere with the plaintiff's 11 OS.NO.9435/2014 possession of a portion of the plaint B schedule property during March 2014.
2.16 Sri. G.V. Veerasetty did not challenge various deeds concerning various portions of land in the plaint A schedule property. Sri. G.V. Veerasetty and his LRs have lost title over various portions of lands in plaint A schedule property sold by the GPA holders of Sri. G.V. Veerasetty. Period of limitation to challenge such sale instances is also over. 2.17 The above are the facts constituting cause of action for this suit. Hence, this suit. (Note: Elaborate narrations are made in the plaint which do not constitute material facts or material particulars. But, such narratives are argumentative in nature, evidence in nature, propositions of law (in the form of judgments or in the form of provisions in statutes) regarding appreciation of evidence, which need not be pleaded. Hence, such narratives are 12 OS.NO.9435/2014 not recorded as part of pleaded facts of the case of the plaintiff).
3. The pleaded facts of the case of the defendants No. 1 to 5 may be stated to the following effect :
3.1 The suit for declaration of title of the plaintiff over the plaint B Schedule property is time barred.
3.2 The plaintiff is not in physical possession and enjoyment of the plaint B Schedule property. Hence, the consequential relief of perpetual prohibitory injunction is not the appropriate relief.
3.3 The plaintiff has no manner of right, title , or interest over the plaint B Schedule property.
3.4 The very fact that the plaintiff has sought for another consequential relief of recovery of possession of the plaint B Schedule property, in the 13 OS.NO.9435/2014 alternative to the first consequential relief of perpetual prohibitory injunction, would clearly indicate that the plaintiff is not in possession of the plaint 'B' schedule property. The plaintiff is not entitled for the main relief of declaration; and consequential relief of perpetual prohibitory injunction or, in the alternative, consequential relief of recovery of possession of the plaint B Schedule property.
3.5 There is no cause of action for the suit. The one alleged in the plaint is an imaginary cause of action. During March of 2014, the defendant no. 4 never tried to interfere with the alleged possession of the plaintiff over the plaint B Schedule property.
As the plaintiff has never been in possession of the plaint B Schedule property, question of the alleged interference with the alleged possession of the plaintiff over the plaint B Schedule property would not arise at all. In fact, the defendant no. 4 herself is in physical possession of the plaint B Schedule 14 OS.NO.9435/2014 property as her father was the absolute owner of 1 Acre 02 Guntas of land out of the the plaint 'A' schedule property and he had gifted said 1 Acre 02 Guntas of land in favour of the Defendant no. 4 under a registered gift deed dated 27-09-2010 of the office of Sub Registrar, Yelahanka. Based on the said gift deed, the defendant no. 4 got the Khata of said 1 Acre 02 Guntas of land changed to the name of the defendant no.4. Said 1 Acre 02 Guntas of land was got converted from agricultural purpose to non agricultural purpose by father of the defendant no.4 by name Sri. G.V. Veerasetty.
3.6 During life time of Sri. G.V. Veerasetty, the defendants no. 1 to 5 and Sri. G.V. Veerasetty had entered in to joint development agreement with the defendant no. 8 and the defendant no. 8 has constructed a multistory building in the said 2 Acres 38 Guntas of land under a registered joint development agreement dated 15-11-2010. 15 OS.NO.9435/2014 3.7 The plaintiff had filed a bare injunction suit in O.S. No.1275/2009 in respect of the plaint B Schedule property against Sri. G.V. Veerasetty on the file of 22nd Addl. City Civil & Sessions Court, Bengaluru, which was dismissed by the said Court. 3.8 As an absolute owner of the plaint A Schedule property Sri. G.V. Veerasetty had obtained conversion order in respect of plaint A Schedule property on 24-05-1993 and got the plaint A Schedule property converted from agricultural purpose to non agricultural purpose. 3.9 The plaint B Schedule property is part and parcel of said 1 Acre 02 Guntas of land owned by the defendant no. 4.
3.10 The plaintiff has not purchased the plaint B Schedule property from Sri. G.V. Veerasetty. Hence, the plaintiff has not derived any title over the plaint B Schedule property.
16 OS.NO.9435/20143.11 The claim of the plaintiff to the effect that Sri. G.V. Veerasetty had executed a power of attorney in favour of the defendant no. 6 is denied. 3.12 The plaintiff claims that the plaintiff purchased the plaint B Schedule property from the defendant no. 7. In fact, the defendant no. 7 and 3 others had filed a suit in O.S. No.6254/1996 against Sri. G.V. Veerasetty. The said suit was dismissed. Against the said Judgment, the defendant no. 7 and 3 others had preferred an appeal in RFA No.7821/2008 before the Hon'ble High Court. The said appeal also came to be dismissed. Under the said circumstances, the plaintiff can not be said to have derived any valid title over the plaint B Schedule property from the defendant no. 7. In fact, the present plaintiff had filed an application in RFA No. 7821/2008 to get himself impleaded as a party to the said appeal. The said application came to be dismissed. Under the said circumstances, based on a registered sale deed dated 27-10-1995 executed 17 OS.NO.9435/2014 by the defendant no. 7 in respect of the plaint B Schedule property in favour of the plaintiff, the plaintiff can not come up with this suit in the year 2014.
3.13 The present suit is hit by principles of res judicata.
3.14 In O.S. No. 1275/2009, Sri. G.V. Veerasetty had categorically denied the execution of the said power of attorney in favour of the defendant no. 6. As Sri. G.V. Veerasetty did not execute said power of attorney in favour of the defendant no. 6, the defendant no. 7 did not derive any valid title over the property alleged to have been sold by the defendant No.6 in favour of the defendant no. 7 under a registered sale deed dated 27-10-1995. Hence, question of the defendant No.7 putting the plaintiff in physical possession of the plaint B Schedule property does not arise at all. 18 OS.NO.9435/2014 3.15 With the above assertions and explanations, the defendants no. 1 to 5 have categorically denied the rest of the pleaded facts of the case of the plaintiff allegedly constituting cause of action for the suit. There is no merit in the suit. The suit may be dismissed.
4. The defendant no. 7 has filed his written statement and stated to the effect that a perusal of the plaint would show that the defendant no. 7 has sold the plaint B Schedule property to the plaintiff. No grievance is made against the defendant no. 7 and no relief is claimed against defendant no. 7. As such, the defendant no. 7 is neither a necessary party nor a proper party to this suit. Hence, the suit is bad for mis-joinder of the defendant no. 7 . There is no cause of action for filing this suit against the defendant no. 7. Hence, the suit against the defendant no. 7 may be dismissed. 19 OS.NO.9435/2014
5. The defendant no. 8 has filed his written statement and stated to the following effect:
5.1 The defendant no. 8 is not concerned with the plaint B Schedule property.
5.2 Sri. G.V. Veerasetty, his wife and children had executed a registered JDA in respect of 2 Acres 38 Guntas of land out of the plaint A Schedule property in favour of the defendant no. 8 on 15-11-
2010. Subsequently, there was a registered rectification deed dated 05-12-2012 between the said parties in respect of said 2 Acres 38 Guntas of land.
5.3 Sri. G.V. Veerasetty had got converted said 2 Acres 38 Guntas of land vide order dated 01-09- 2010, much prior to entering in to said JDA dated 15-11-2010. Pursuant to the said JDA, the defendant no. 8 has already constructed basement, ground, plus fourteen floors building on said 2 20 OS.NO.9435/2014 Acres 38 Guntas of land. The plaint B Schedule Property has got nothing to do with said 2 Acres 38 Guntas of land. The defendants no. 1 to 5, and 8 and other purchaser of flats in the said building are in possession of said 2 Acres 38 Guntas of land. 5.4 The defendant no. 8 has adopted the pleadings in the written statement filed by the defendants no. 1 to 5. The pleas of the defendants no. 1 to 5 are briefly noted supra.
5.5 The market value of the plaint B Schedule property as on the date of filing of the suit was more than Rs.3 Crores. Whereas, the plaintiff has shown the market value of the plaint B Schedule property as on the date of filing of the suit as Rs.93,20,215/-. Hence, the subject matter of the suit namely, the plaint B Schedule property is undervalued in this suit. Court fee paid is also insufficient. Hence, the suit may be dismissed. 21 OS.NO.9435/2014
6. Based on the materials on record, this court has framed the following Issues :-
1) Whether the Plaintiff proves his title over the suit schedule properties ?
2) Does he further prove his lawful possession over the suit schedule properties as on the date of the suit ?
3) Whether the alleged interference is true ?
4) Whether the suit is bad for mis-joinder of unnecessary parties ?
5) Whether the suit is barred by the law of limitation ?
6) Whether the suit is hit by the principles of 'respondent-judicata' ?
7) To what reliefs the parties are entitled ?
8) What order or decree ?
7. On behalf of the plaintiff, the Power of Attorney holder of the plaintiff one Sri Nagabhushan B.N., has got himself examined as PW.1, got marked Exs.P-1 to P-39 and got closed the side of the plaintiff. On behalf of the defendants, the defendant No.4 has got herself examined as DW.1, got marked Exs.D-1 to D-27 and got closed the side of defendants.
22 OS.NO.9435/2014
8. Heard the arguments of the learned Advocate for the plaintiff and learned Advocate for the defendants No.1 to 5. Perused the records.
9. My findings on the above Issues are as follows:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Affirmative
Issue No.8 : As per final order
for the following :
REASO NS
10. ISSUES NO.1 TO 6: This is a suit for
declaration of title of the plaintiff ; and for consequential relief of perpetual injunction or, in the alternative, for recovery of possession of the plaint 'B' schedule property. The plaint 'B' schedule property is the suit property. The defendants No.1 to 5 and 8 have raised pleas of res-judicata and bar 23 OS.NO.9435/2014 of limitation. Issue No.1 deals with title of the plaintiff over the plaint 'B' schedule property. Issue No.2 deals with lawful possession of the plaintiff over the plaint 'B' schedule property. Issue No.3 deals with alleged interference by the defendants No.1 to 5 over the possession of the plaint 'B' schedule property in the hands of the plaintiff. Issue No.4 deals with mis-joinder of unnecessary party, namely, the defendant No.7. Issue No.5 deals with bar of limitation. Issue No.6 deals with res-judicata. Having held the trial, having heard the arguments of learned Advocates, having gone through the entire gamut of materials on record, and having considered the proposition of law canvassed by the learned Advocates for the parties, in my considered view, the facts and evidence touching all the issues No.1 to 6 are inter-twined in such a way that the issues No.1 to 6 cannot be considered separately and independently without need for repetition of discussion of facts and evidence, time and again. On the other hand, 24 OS.NO.9435/2014 grouping of the issues No.1 to 6 together and discussing the facts and evidence and propositions of law applicable to the facts by adopting integrated approach would help in comprehensively understanding the controversy involved in this suit in a proper perspective. In view of all these issues No.1 to 6 are taken up together for common consideration.
11. The basic material facts pleaded by the plaintiff regarding flow of title, at the cost of repetition, may briefly be, stated thus :
One Sri G.V. Veerasetty purchased the plaint 'A' schedule property under a registered sale deed dated 12-03-1965. Said Sri G.V. Veerasetty obtained conversion order dated 15-10-1992 in respect of plaint 'A' schedule property. Said Sri G.V. Veerasetty disposed off the plaint 'A' schedule property in various bits of lands to various persons for commercial/residential purposes. Said Sri G.V. Veerasetty executed an agreement of sale dated 25 OS.NO.9435/2014 19-12-1992 in respect of a piece of land measuring 162 feet from East to West and 115 feet from North to South (carved out of the plaint 'A' schedule property) in favour of the defendant No.6. Sri G.V. Veerasetty had executed a GPA dated 21-12-1992 in favour of the defendant No.6 in respect of said piece of land. The defendant No.6 sold the said piece of land in favour of the defendant No.7 under a sale deed dated 27-10-1995. Subsequently, the defendant No.6 executed a Rectification Deed dated 28-06-1996 in favour of of the defendant No.7 in respect of said piece of land. As per the said sale deed dated 27-10-1995 and said Rectification Deed dated 28-06-1996, the defendant No.7 got the katha in respect of said piece of land changed to the name of the defendant No.7. Neither Sri G.V. Veerasetty nor anybody else has opposed the said change of katha in respect of said piece of land in the name of the defendant No.7. The defendant No.7 divided the said piece of land into two portions. The defendant No.7 sold the plaint 'B' 26 OS.NO.9435/2014 schedule property in favour of the plaintiff under a registered sale deed dated 13-12-2005. The defendant No.7 has handed over possession of the plaint 'B' schedule property to the hands of the plaintiff under the said sale deed dated 13-12-2005.
Thus, the plaintiff has become the absolute owner in possession of the plaint 'B' schedule property. The plaintiff has claimed that in case this Court comes to the conclusion that the plaintiff is not in possession of the plaint 'B' schedule property, the relief of recovery of possession of plaint 'B' schedule property may be granted in favour of the plaintiff.
12. Per contra, the defence pleas of the defendants No.1 to 5 and 8 regarding the title claimed by the plaintiff over the plaint 'B' schedule property may be stated, at the cost of repetition, to the following effect. As admitted by the plaintiff himself there is no quarrel regarding the fact that Sri G.V. Veerasetty was the absolute owner in 27 OS.NO.9435/2014 possession of the plaint 'A' schedule property. Sri G.V. Veerasetty never executed any GPA in favour of the defendant No.6 in respect of above said piece of land measuring 162 feet from East to West and 115 feet from North to South. In fact, the said Sri G.V. Veerasetty had retained ownership and possession over the 1 acre 2 guntas of land claimed by the defendant No.4 through a registered Gift Deed dated 27-09-2010. Said Sri G.V. Veerasetty executed the said Gift Deed in respect of said 1 acre 2 guntas of land in favour of the defendant No.4 and handed over possession of the said 1 acre 2 guntas of land to the hands of the defendant No.4. The plaint 'B' schedule property as claimed by the plaintiff is not identifiable. No such land with identity as described in plaint 'B' schedule exists on the spot. The plaintiff has not derived any title over the plaint 'B' schedule property from defendant No.7. The plaintiff is not in possession of the plaint 'B' schedule property. In view of the earlier rounds of litigation ( which would be discussed little later), 28 OS.NO.9435/2014 the present suit is barred by res-judicata. Sri G.V. Veerasetty had denied the title of the defendant No.7 himself over said piece of land measuring 162 feet from East to West and 115 feet from North to South long ago and, as such, the present suit is barred by limitation under Article 58 of the Limitation Act, 1963. By raising the above noted pleas the defendants No.1 to 5 and 8 have sought for dismissal of the suit in respect of all the relief claimed by the plaintiff in this suit.
13. The defendant No.7 has raised a plea that the plaintiff has claimed that the plaintiff has purchased the plaint 'B' schedule property from the defendant No.7 and no allegations are made against the defendant No.7 and no relief is claimed against the defendant No.7 and, as such, the defendant No.7 is an unnecessary party to this suit and, hence, the suit is bad for mis-joinder of the defendant No.7. 29 OS.NO.9435/2014
14. The learned Advocate for the plaintiff has canvassed his arguments to the following effect :
14.1 In the year 1992 late Sri.Veerasetty executed Ex.P.2 and Ex.P.3 in respect of 160 feet x 115 feet in favour of the defendant No.6.
14.2 In the year 1995 the defendant No.6 executed Ex.P.7 sale deed in favour of the defendant No.7.
14.3 In the year 2005 the defendant No.7 executed Ex.P.19 sale deed in favour of the plaintiff in respect of the plaint 'B' schedule property.
14.4 So far as, Ex.P.3 is concerned the law laid down by the Hon'ble Supreme Court in Rajni Tandon (2009) 14 SCC 782 squarely applies regarding the position of law that when the power of attorney holder himself executes a sale deed in his own name (of course on behalf of the principal) 30 OS.NO.9435/2014 Sections 32 and 33 of the Registration Act, 1908, have no application.
14.5 Late Sri.Veerashetty executes Ex.D.12 gift deed in respect of 1 acres 2 guntas of land which includes the plaint 'B' schedule property also, in the year 2010 in favour of the Defendant No.4.
14.6 Late Sri.Veerashetty died in the year 2013 ( Ex.D.22 death certificate).
14.7 The suit of the defendant No.7 in respect of the plot measuring 160 feet x 58 feet in OS No.6254/1996 for bare injunction was dismissed by this City Civil Court on 22-12-2007 ( Ex.P.24).
14.8 The plaintiff filed a suit for bare injunction against Sri.Veerasetty in respect of the plaint 'B' schedule property in OS No.1275/2009. This City Civil Court dismissed the said suit on 30-11-2012 (Ex.P.17).31 OS.NO.9435/2014
14.9 The said two judgments Ex.P.24 and Ex.P.17 do not operate as resjudicata (para 16 of the judgment of the Hon'ble Supreme Court in (2008) 5 SCR 331 Anathula Sudhakar vs. P. Buch Reddy (Dead) by LRs and Others).
14.10 So far as suit for declaration and recovery of possession is concerned, unless the Defendant sets up the plea of adverse possession and proves it, if the plaintiff is able to establish title, the plaintiff cannot be non suited.
14.11 The question in this case is whether Ex.P.2, Ex.P.3, Ex.P.7, Ex.P.8, and Ex.P.19 has to be accepted as conferring title in respect of the plaint 'B' schedule property in favour of the plaintiff; or whether Ex.D.12 gift deed has to be accepted as conferring title over 1 acre 2 guntas of land (which includes the present plaint 'B' schedule property). Sri.Veerasetty did not challenge Ex.P.2 and Ex.P.3 or 32 OS.NO.9435/2014 subsequent sale deeds as per Ex.P.7, Ex.P.8, and Ex.P.19, so far. Neither late Veerasetty nor the present Defendant No.4 has set up any plea of adverse possession nor proved such a plea. No issue is framed either in this suit or in the previous two suits regarding the plea of adverse possession. There is no pleading either in this case or in the earlier two suits regarding adverse possession. No evidence is adduced regarding adverse possession. Considering the provision under Sections 7 and 48 of the Transfer of Property Act, when late Sri.Veerasetty has lost title over the suit property by virtue of Ex.P.2, Ex.P.3, Ex.P.7, Ex.P.8, and Ex.P.19, late Sri.Veerasetty himself did not have title over the plaint 'B' schedule property so as to confer valid title in respect of the plaint 'B' schedule property under Ex.D.12. Hence, the plaintiff has established title over the plaint 'B' schedule property. The Defendant No.4 has failed to establish her title over the said 01 acre 02 guntas of land.
33 OS.NO.9435/201414.12 The plaintiff has proved his possession over the plaint 'B' schedule property. By way of abundant caution the plaintiff has sought for recover of possession of the plaint 'B' schedule property.
14.13 The suit may be decreed.
15. The learned Advocate for the plaintiff has relied upon a judgment of the Hon'ble Supreme Court in (2009) 14 SCC 782 Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and Another.
16. The learned Advocate for the defendants No.1 to 5 has canvassed his arguments to the following effect :
16.1 The plaintiff has filed this suit for declaration, injunction and recover of possession (in the alternative).34 OS.NO.9435/2014
16.2 Plaintiff alleges cause of action in the year 2014, eventhough the plaintiff and his vendor had fought earlier rounds of litigations. The cause of action shown is false. The conduct of the plaintiff in stating the facts to the effect that the cause of action arose few days earlier to filing of the suit is false. On this ground alone the suit is liable to be dismissed.
16.3 Sri.Veerasetty has not formed any layout.
Hence, the claim of the plaintiff that he purchased the plaint 'B' schedule property is not acceptable. 16.4 The suit is time barred as the suit is filed beyond 3 years from the dates of registration of sale deed or from the date of denial of the title. On this ground also the suit is liable to be dismissed. 16.5 The defendant No.7 is no way concerned to the plaint 'B' schedule property. Purchase of the plaint 'B' schedule property from him is invalid. 35 OS.NO.9435/2014 16.6 Sri.Veerasetty has executed a registered gift deed in favour of the defendant No.4. The Defendant No.4 is the absolute owner in possession of 1 acre 2 guntas of land which remained with Sri.Veerasetty as explained in the written statement.
16.7 Similar suits were filed and were decided by CCH-43 as per Ex.D.18 and Ex.D.20 wherein the plaintiffs therein tasted defeat at the hands of the said Court. The said suits were in respect of other portions in said 1 acre 2 guntas of land. The said suits were also for declaration and injunction and for recovery of possession.
16.8 The present plaintiff as well as his vendor had filed suits in respect of the very same plaint 'B' schedule property for bare injunction. Both the suits were dismissed by this Court (CCH-16 and CCH-7). Hence, the present suit is hit by resjudicata. 36 OS.NO.9435/2014 16.9 The description of the plaint 'B' schedule property is misleading as no sites were formed by Sri.Veerasetty.
16.10 The Defendant No.4 has produced the khatha, tax paid receipts, sanctioned plan etc., which were obtained subsequent Ex.D.12 gift deed.
17. The learned Advocate for the defendants No.1 to 5 has relied upon the following judgments :(1) AIR 2011 Supreme Court 3590 Khatri Hotels Private Limited and Anr v. Union of India and Anr ; (2) AIR 2000 Delhi 336 Ashok K. Khurana v. M/s. Steelman Industries and another ; (3) (2014) 2 Supreme Court Cases 269 Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others ; and (4) (2021) 3 Supreme Court Cases 675 A. Subramanian and Another v. R. Pannerselvam. 37 OS.NO.9435/2014
18. Bearing in mind, the pleadings of the cases of the contesting parties and also bearing in mind the arguments canvassed by the learned Advocates for the contesting parties, the oral evidence of the witnesses examined on behalf of the contesting parties may be considered.
19. The Special Power of Attorney holder of the plaintiff by name Sri Nagabhushan B.N., is examined as PW.1. On entering into the witness box, the PW.1 has, on oath, submitted his examination-in-chief by way of his affidavit wherein he has reiterated the above noted pleaded facts of the case of the plaintiff. During the course of cross- examination the PW.1 has stated to the following effect :
19.1 The PW.1 does not know about filing of a suit by the plaintiff in OS No.1275/2009. PW.1 does not know if the said suit in OS No.1275/2009 is dismissed on 30-11-2012.38 OS.NO.9435/2014
19.2 It is true that the defendant No.7 and three others had filed a suit in OS No.6254/1996. PW.1 does not know as to the nature of relief claimed in the suit in OS No.6254/1996. It is true that against the judgment of this Court in OS No.6254/1996, present defendant No.7 had filed an appeal in RFA No.782/2008 before the Hon'ble High Court.
19.3 It is true that the defendant No.7 purchased the said piece of land measuring 162 feet from East to West and 115 feet from North to South from the defendant No.6. It is true that Sri G.V. Veerasetty has not sold the said land in favour of the defendant No.7. The PW.1 has voluntarily stated that Sri G.V. Veerasetty had executed the agreement of sale and a power of attorney in favour of the defendant No.6 in respect of said piece of land. It is not true to suggest that Sri G.V. Veerasetty never executed any such power of 39 OS.NO.9435/2014 attorney and any such agreement in respect of said land in favour of the defendant No.6.
19.4 It is not true to suggest that the suit in OS No.6254/1996 was dismissed on the ground that the present defendant No.7 and his co-plaintiffs in the said suit were not in possession of the suit schedule properties of the said suit. It is true that Ex.P-2 sale agreement dated 19-12-1992, Ex.P-3 GPA dated 21-12-1992 and Ex.P-4 GPA dated 21-12-
1992 are unregistered documents. These three documents namely Ex.P-2 to Ex.P-4 are marked subject to objection of learned Advocate for the defendants No.1 to 5. So far as Ex.P-3 and Ex.P-4 - GPAs are concerned, the learned Advocate for the defendants No.1 to 5 has relied upon a judgment of the Hon'ble High Court of Karnataka reported in AIR 1994 KAR 133 for the proposition of law that a GPA whereunder the principal empowers the agent to alienate the immovable property which is the subject matter of such GPA, then such GPA is 40 OS.NO.9435/2014 required to be compulsorily registered. Per contra, the learned Advocate for the plaintiff relies upon a judgment of the Hon'ble Supreme Court in (2009) 14 SCC 782 Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and Another, for the proposition of law declared at para 33 of the said judgment which reads as under :
"33. 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) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. 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 Act."
19.5 The learned Advocate for the plaintiff has argued that a perusal of Ex.P-7 - a registered sale deed dated 27-10-1995 would show that it is signed by the defendant No.6 as Power of Attorney holder 41 OS.NO.9435/2014 of Sri G.V. Veerasetty. Under the said circumstances applying the principle of law enunciated by the Hon'ble Supreme Court in Rajni Tandon case (supra), it has to be held that Section 33 of the Registration Act, 1908 is not attracted to Ex.P-3 and Ex.P-4. In other words, in view of the fact that it is the defendant No.6 who executed Ex.P-7 sale deed dated 27-10-1995 as power of attorney holder of Sri G.V. Veerasetty, it is not necessary that Ex.P-3 and Ex.P-4 GPAs have to be registered for the purpose of presentation of Ex.P-7 sale deed before the competent registering authority for registration. So far as Ex.P-2 is concerned, it is dated 19-12-1991 and it is one without possession. Hence, Ex.P-2 agreement of sale is not compulsorily registrable as on the said date. For all these reasons, the objections of the learned Advocate for the defendants No.1 to 5 that for want of registration Ex.P-2 to Ex.P-4 are not admissible in evidence is rejected and it is held that Ex.P-2 to Ex.P-4 are admissible in evidence. 42 OS.NO.9435/2014 19.6 It is not true to suggest that Sri G.V. Veerasetty has not executed any such power of attorney as referred to in Ex.P-7 sale deed dated 27-10-1995. It is not true to suggest that Ex.P-7 sale deed dated 27-101995 is a created document. 19.7 The site (plaint 'B' schedule property) is assigned property No.74/1D. There is a plan regarding assignment of said property number to the plaint 'B' schedule property. There are no layout plan regarding plaint 'B' schedule property. 19.8 The total extent of land comprised in plaint 'A' schedule property is 4 acres 21 guntas. The plaint 'B' schedule property is situated abutting to Doddaballapur and Yelahanka Main road. It is true that the entire plaint 'A' schedule property is situated abutting to the said main road. It is true that in 2 acres 38 guntas of land more than 200 flats exists. But, it may be true that the 43 OS.NO.9435/2014 construction of said flats is in said 2 acres 38 guntas of land. Sri G.V. Veerasetty and his children had executed Joint Development Agreement in favour of the defendant No.8. The said flats are situated at a distance of 100 feet from the said main road. The PW.1 does not know that if Sri G.V. Veerasetty had formed sites in 21 guntas of land, during his life time and sold the said sites. The plaint 'B' schedule property is not covered under the area of 2 acres 38 guntas where flats are constructed.
19.9 The plaint 'B' schedule property may be covered in the area where Sri G.V. Veerasetty must have formed said sites in said 21 guntas of land. The PW.1 does not know as to who is in possession of 1 acre 2 guntas of land (which is claimed by the defendant No.4 under the said Gift Deed). It may be true that Sri G.V. Veerasetty had executed a Gift Deed in favour of the defendant No.4. Said 1 acre 2 guntas of land is converted from agricultural 44 OS.NO.9435/2014 purpose to non-agricultural purpose. The PW.1 has not seen said 1 acre 2 guntas of land. It may be true that the sheds in said 1 acre 2 guntas of land are let out. It is not true to suggest that in 2009 itself Sri G.V. Veerasetty had contended that the plaintiff has no right over the plaint 'B' schedule property. The plaintiff came to know about his right over the plaint 'B' schedule property in the year 2014.
19.10 The PW.1 has not read the judgment, a copy of which is marked at Ex.P-17. The plaintiff has not preferred any appeal against the Ex.P-17 judgment.
19.11 The plaintiff has purchased the plaint 'B' schedule property under Ex.P-19 sale deed dated 13-05-2005. In 2009, Sri G.V. Veerasetty had appeared before the Court in OS No.1275/2009 and contended that the plaint 'B' schedule property belonged to Sri G.V. Veerasetty. It is not true to 45 OS.NO.9435/2014 suggest that since defendant No.7 himself did not have any right, title or interest over the plaint 'B' schedule property, the plaintiff has not derived any title over the plaint 'B' schedule property under Ex.P-7 sale deed dated 27-10-1995. It may be true that in OS No.6254/1996 which was revealed to the defendant No.7 that the defendant No.7 did not have any right over the plaint 'B' schedule property. It is not true to suggest that even after learnt that defendant No.7 had no title over the plaint 'B' schedule property, the plaintiff has purchased the plaint 'B' schedule property from the defendant No.7 under Ex.P-7 sale deed dated 27-10-1995. 19.12 No relief is claimed as against the defendants No.6 to 8 in this suit.
19.13 The plaintiff has not given any complaint against the defendant No.7 alleging that the defendant No.7 has committed fraud on the plaintiff regarding plaint 'B' schedule property which Sri G.V. 46 OS.NO.9435/2014 Veerasetty had claimed that it belonged to him. It is not true to suggest that the plaint 'B' schedule property is not situated within the boundaries mentioned in the plaint 'B' schedule. It is not true to suggest that eventhough the Courts have held that the defendant No.7 himself was not in possession of the plaint 'B' schedule property, yet the plaintiff is falsely claiming that the plaintiff is in possession of the plaint 'B' schedule property. There is no decree or order of any Court in favour of the plaintiff in respect of plaint 'B' schedule property. The plaintiff is residing at Hyderabad. The plaintiff is a Director in Nagarjuna Company. In the plaint, the address of the plaintiff is shown as Yelahanka New Town, Bengaluru. It is true that the plaintiff has not stated in the plaint that the plaintiff is residing at Hyderabad. It is not true to suggest that the PW.1 does not know anything regarding the facts of this case.
47 OS.NO.9435/201419.14 It is true that the plaintiff had represented one Sri Vijayakrishna Raju and one Sri Raghu Raju as their Power of Attorney holder in OS No.1276/2009. The said suit was filed in respect of site No74/1C. This suit pertains to site No.74/1D. Site No.74/1C and site No.74/1D are situated adjacent to each other. It is not true to suggest that no such sites are in existence. Total extent of land in Sy.No.74 is 1 acre 2 guntas. It may be true that in Sy.No.74, the total extent of land belonging to Sri G.V. Veerasetty is 4 acres 21 guntas. The plaintiff has purchased 1 acre 2 guntas of land from the defendant No.7. It is not true to suggest that the defendant No.7 has given said 1 acre 2 guntas of land in favour of defendant No.4 through Gift Deed. The suit in OS No.1276/2009 might have been dismissed and the PW.1 has not secured information about the result of the said suit.
19.15 The PW.1 does not know as to whether the BBMP has heard Sri G.V. Veerasetty and the 48 OS.NO.9435/2014 defendant No.4 at the time of entering the name of the plaintiff in the katha in respect of plaint 'B' schedule property. At the time of changing the katha of the plaint 'B' schedule property, suit pertaining to plaint 'B' schedule property was pending. It is true that the conversion order produced by the PW.1 is of the year 1993. It is true that the said conversion order was obtained by Sri G.V. Veerasetty. It is true that neither Sri G.V. Veerasetty nor the defendant No.4 has sold the plaint 'B' schedule property. It is not true to suggest that the documents at Ex.P-26 to Ex.P-36 are created by the plaintiff by colluding with BBMP officials. It is true that on earlier dates when the PW.1 was examined in this case before this Court, Ex.P-26 to Ex.P-36 were not available with the PW.1. 19.16 Ex.P-1 - SPA is produced in this case, but, not produced in any other case. Ex.P-37 - Official Memo dated 27-10-1992 of the Deputy Commissioner, Bengaluru pertains to the plaint 'B' 49 OS.NO.9435/2014 schedule property. It is true that Ex.P-37 pertains to 1 acre 3 guntas of land. (Ex.P-37 shows that it is in respect of 1 acre 3 guntas of land in Sy.No.21 of Harohalli Village, Yealahanka Hobli, Bengaluru North Taluk) The defendant No.4 possess 18000 sq.ft., land in 1 acre 3 guntas of land. The defendant No.4 has paid betterment charges in respect of said 1 acre 3 guntas of land. The PW.1 does not know about the sanctioned plan (which is suggested to pertain to 1 acre 3 guntas of land). The said plan may be pertaining to said 1 acre 3 guntas of land. Said sanctioned plan is marked as Ex.D-23 through PW.1. The PW.1 does not know as to when the sanctioned plan as per Ex.D-23 was issued. The plaintiff has obtained katha in respect of plaint 'B' schedule property by paying betterment charges and the plaintiff is paying property tax in respect of plaint 'B' schedule property upto date. The PW.1 does not know as to why Ex.P-38 and certified copy of the written statement in OS No.6254/1996 is produced in this case. The plaintiff has filed a suit 50 OS.NO.9435/2014 in respect of neighboring site of the plaint 'B' schedule property before this City Civil Court. It is not true to suggest that after dismissal of the suit concerning the site situated adjoining to plaint 'B' schedule property, the plaintiff has executed Ex.P-1 SPA in favour of PW.1 instead of plaintiff himself attending the Court to depose.
19.17 The PW.1 has filed a suit in OS No.6332/2021 as SPA holder of Sri G. Vijayakrishna Raju and Sri Raghu Raju. A copy of the plaint in the said suit in OS No.6332/2021 is marked through PW.1 as Ex.D-24. The said suit was for declaration of title. The said suit is not in respect of plaint 'B' schedule property. But, the said suit is in respect of a site situated adjoining to the plaint 'B' schedule property.
19.18 In Ex.P-39 deposition of Sri G.V. Veerasetty in an earlier suit, it was admitted that Sri G.V. Veerasetty had executed GPA based on which the 51 OS.NO.9435/2014 defendant No.6 has sold the said piece of land measuring 162 feet from East to West and 115 feet from North to South in favour of the defendant No.7. Sri G.V. Veerasetty had stated in his said deposition as per Ex.P-39 that he had never executed said GPA and at another stretch in the very deposition he had stated that he had executed the said GPA and cancelled the same subsequently. It is true that in OS No.1275/2009 an application for inclusion of a relief of declaration of title and recovery of possession was filed.
19.19 Before purchasing the plaint 'B' schedule property under a registered sale deed dated 13-12- 2005, the plaintiff had obtained legal opinion from an Advocate. At the time of the said legal opinion the PW.1 was not aware of the suit in OS No.6254/1996. But, however, the plaintiff might have had information about OS No.6254/1996 at the time when the said legal opinion was obtained. The PW.1 does not know if the Court did not grant 52 OS.NO.9435/2014 either interlocutory oder or final decree in respect of present plaint 'B' schedule property in favour of the present plaintiff in OS No.6254/1996. The PW.1 has no capacity to read and understand the Court records. The plaintiff may be knowing about the result of the suit in OS No.6254/1996. The plaintiff is in possession of documents to show that at the time of filing of suit in OS No.6254/1996 as well as at the time of execution of a registered sale deed dated 13-12-2005, the defendant No.7 was in possession of the plaint 'B' schedule property. The defendant No.7 had constructed compound wall around the plaint 'B' schedule property. The defendant No.7 had not obtained any sanctioned plan for constructing any building in the plaint 'B' schedule property. The plaintiff has purchased a vacant land from the defendant No.7 and hence, question of obtaining sanctioned plan for constructing a building in the plaint 'B' schedule property by the defendant No.7 would not arise at all. In OS No.1275/2009 the Court did not grant 53 OS.NO.9435/2014 either the interim relief or the final relief in respect of plaint 'B' schedule property in favour of the plaintiff. No appeal is preferred against the final judgment of the Court in OS No.1275/2009. Entire 1 acre 2 guntas of land is covered by a compound wall and there is a gap by the side of the shops. The plaintiff is reaching the plaint 'B' schedule property through the said gap.
20. The defendant No.4 is examined as DW.1. She has entered into witness box and on oath, submitted her examination-in-chief by way of her affidavit wherein she has reiterated the defence pleas taken by the defendants No.1 to 5 in their written statement. During the course of cross- examination DW.1 has stated to the following effect: 21.1 The DW.1 does not know if a certified copy of the written statement obtained from OS No.6254/1996 is the one which was filed by the father of the DW.1 by name Sri G.V. Veerasetty. The 54 OS.NO.9435/2014 DW.1 is a BFA degree holder. The DW.1 does not know as to what Sri G.V. Veerasetty had contended before the Court in OS No.6254/1996. The defendants No.1 to 5 have produced document to show that Sri G.V. Veerasetty had obtained an order of conversion of 21 guntas of land from agricultural purpose to non-agricultural purpose and formed 16 sites and sold the same.
21.2 The DW.1 has stated that she does not know when a suggestion is made to DW.1 as to whether she admit the fact that the Court had recorded in its judgment in Ex.D-1 to the effect that Sri G.V. Veerasetty had admitted execution of a GPA in favour of the defendant No.6 and explained that he had lateron cancelled the said GPA on 17-3-1994 ; and the observation of the Court to the effect that the document cancelling the said GPA was not produced before the Court in the case in OS No.6254/1996.
55 OS.NO.9435/201421.3 The DW.1 has produced document regarding conversion of 1 acre guntas of land which the DW.1 has obtained through Ex.D-12 Gift Deed from her father. It is not true to suggest that the defendants No.1 to 5 have not produced any documents regarding the conversion of either said 21 guntas of land or ssaid 1 acre 2 guntas of land. It is not true to suggest that DW.1 is aware of the fact that the suit in OS 1275/2009 was pending for consideration at the time of execution of Ex.D-12 Gift Deed. The DW.1 does not remember as to when the DW.1 came to know about OS No.1275/2009. The DW.1 does not know as to how much period after he got Ex.D-12 Gift Deed, she got the katha in her name as per Ex.D-13 and Ex.D-14. To a question as to whether the katha in respect of said 1 acre 2 guntas of land was standing in the name of Sri G.V. Veerasetty at the time when the DW.1 got the said katha entered in the name of DW.1, the reply of the DW.1 is that entire 4 acres 21 guntas of land was entered in the records of the BBMP. The DW.1 has 56 OS.NO.9435/2014 produced record of BBMP pertaining to said 4 acres 21 guntas of land (plaint 'A' schedule property) which was standing in the name of Sri G.V. Veerasetty.
21.4 To a question as to whether either DW.1 or Sri G.V. Veerasetty had raised objection regarding Ex.P-6 katha in respect of plaint 'B' schedule property in the name of the defendant No.7, the reply of the DW.1 is that Sri G.V. Veerasetty has raised such objection before the Yelahanka Sub- Registrar. To a question as to whether either the DW.1 or Sri G.V. Veerasetty had raised any objection before the BBMP regarding Ex.P-26 katha certificate, Ex.P-27 property tax register extract in the year 2011-12, Ex.P-34 katha certificate and Ex.P-35 property tax register extract in the year 2020-21, the DW.1 has replied stating that she does not know.
57 OS.NO.9435/201421.5 The order mentioned in Ex.D-12 is the one which is marked at Ex.P-28. To a question as to whether the measurement of the land mentioned in para No.1 of the page No.2 in Ex.D-12 Gift Deed dated 27-09-2010 is correct, the reply of the DW.1 is that she is not able to understand it. To another question as to the extent of land originally held by Sri G.V. Veerasetty was 4 acres 5 guntas or whether it was 4 acres 21 guntas, the reply of the DW.1 is that she is not able to understand.
21.6 It is not true to suggest that the DW.1 is deposing falsely against the recitals in Ex.D-1 Gift Deed. Sri G.V. Veerasetty had formed layout in 21 guntas of land and constructed a multi-storied building consisting of various flats in remaining 2 acres 38 guntas of land by entering into JDA with the defendant No.8. The boundaries of 4 acre 21 guntas of land are East by - CRPF campus ; West by
- Yelahanka-Doddaballapur Main road ; North by - CRPF campus ; and South by - CRPF campus. The 58 OS.NO.9435/2014 boundaries of said 2 acres 38 guntas of land are East by - CRPF campus ; West by - said 21 guntas of land ; North by - CRPF campus ; and South by - said 21 guntas of land. The boundaries of 1 acre 2 guntas of land as mentioned in conversion order and also as mentioned in Ex.D-12 Gift Deed are one and the same.
21.7 Park zone area shown as northern boundary of 1 acre 2 guntas of land in Ex.D-12 is comprised in 1 acre 2 guntas of land itself. To a question as to whether park zone area is comprised in 1 acre 2 guntas of land or in 2 acre 38 guntas of land, the reply of the DW.1 is that it is in 1 acre 2 guntas of land. The DW.1 has denied the suggestion to the effect that if the park zone area is executed, then the property covered under Ex.D-12 Gift Deed would be more than 1 acre 2 guntas of land. There is no mention about park zone area in conversion order.
59 OS.NO.9435/201421.8 The fact mentioned in order of the Tahsildar, Bengaluru North Taluk dated 16-07-2010 to the effect that Sy.No.74 is divided as Sy.No.74/1 and Sy.No.74/2 is correct. There is no impediment for the DW.1 to produce the said order dated 16-07- 2010. There is no impediment for the DW.1 to produce hissa tippani pertaining to the said order dated 16-07-2010. The DW.1 does not know if the said order dated 16-07-2010 was passed prior to execution of Ex.D-12 Gift Deed. Said 1 acre 2 guntas of land is comprised both in Sy.No.74/1 and in Sy.No.74/2. The DW.1 does not know regarding extent of land in Sy.No.74/1 and the extent of land in Sy.No.74/2.
21.9 It is not true to suggest that except 2 acres 38 guntas of land in Sy.No.74, no other piece of land was left with Sri G.V. Veerasetty. It is not true to suggest that by suppressing suit in OS No.1275/2009, Ex.D-12 Gift Deed was created. 60 OS.NO.9435/2014 21.10 To a suggestion to the effect that in the JDA pertaining to 2 acres 38 guntas of land, none of the boundaries of said 2 acres 38 guntas of land is shown as CRPF campus, the reply of the DW.1 is that in the old records it is mentioned so. To a question as to which is said old record, reply of the DW.1 is that it is the look out of the defendant No.8
- Developer and that it is not the concern of the DW.1. The DW.1 does not posses any land in Harohalli near Yelahanka. To a suggestion to the effect that Ex.D-16 tax paid receipt pertains to land situated in said Harohalli village, the reply of the DW.1 is that DW.1 is paying the property tax and that the concerned authorities are mentioning so in Ex.D-16.
21.11 It is not true to suggest that since the DW.1 or Sri G.V. Veerasetty does not possess any piece of land, and that the defendants No.1 to 5 are not able to produce any tax paid receipt pertaining to a land situated at Puttenahalli. When Ex.P-18 - a certified 61 OS.NO.9435/2014 copy of the written statement filed by Sri G.V. Veerasetty is confronted to the DW.1, the DW.1 has stated that she cannot identify the signature of Sri G.V. Veerasetty. She has also stated that unless she goes through the entire contents in Ex.P-18, she cannot identify the signature of Sri G.V. Veerasetty in Ex.P-18, in a reply to a suggestion to the effect that since Sri G.V. Veerasetty has admitted execution of GPA in favour of the defendant No.6, the DW.1 is not admitting signature of Sri G.V. Veerasetty. When Ex.P-3 - a certified copy of GPA dated 21-12-1992 is confronted to the DW.1, the DW.1 has stated that she cannot identify the signature of Sri G.V. Veerasetty. She has identified signature of Sri G.V. Veerasetty in Gift Deed.
22. During the course of cross-examination an attempt is made to demonstrate that during his lifetime, Sri G.V. Veerasetty had sold the entire plaint 'A' schedule property and that no piece of land in plaint 'A' schedule property remained with 62 OS.NO.9435/2014 Sri G.V. Veerasetty and hence, he could not have executed Ex.D-12 Gift Deed in respect of 1 acre 2 guntas of land in Sy.No.74 of Puttenahalli Village, and as such the defendant No.4 (DW.1) has not acquired any sort of right, title, or interest whatsoever over said 1 acre 2 guntas of land under Ex.D-12 Gift Deed. The DW.1 has denied the said suggestion.
23. I have gone through the entire gamut of materials on record. From the pleadings ; from recitals found in the documents namely, (i) Ex.P-2 - a certified copy of GPA dated 19-12-1992 purported to have been executed by Sri G.V. Veerasetty in favour of the defendant No.6, (ii) Ex.P-3 - a certified copy of GPA dated 21-12-1992, (iii) Ex.P-7 - Original sale deed dated 27-10-1995 executed by the defendant No.6 in favour of the defendant No.7, (iv) Ex.P-8 - Original Rectification ded dated 28-06- 1996, (v) ex.P-17 - a certified copy of judgment in OS No.1275/2009, DD on 30-11-2012, (vi) Ex.P-19 - 63 OS.NO.9435/2014 a certified copy of sale deed dated 13-12-2005 executed by the defendant No.7 in favour of the plaintiff in respect of plaint 'B' schedule property,
(vii) Ex.P-24 - a certified copy of judgment in OS No.6254/1996 DD on 22-12-2017, (viii) Ex.P-25 - a certified copy of decree in OS No.6254/1996, (ix) Ex.P-38 - a certified copy of written statement in OS No.6254/1996, (x) Ex.P-39 - a certified copy of deposition of DW.1 in OS No.1275/1996, (xi)Ex.D-3 a certified copy of the judgment of the Hon'ble High Court of Karnataka in RFA No.782/2008, (xii) Ex.D-4
- a certified copy of an interlocutory application filed by the present plaintiff and two other in RFA No.782/2008 under Ordr I Rule 10(2) CPC, (xiii) Ex.D-6 - a certified copy of amended plaint in OS No.1276/2009, (xiv) Ex.D-7 - a certified copy of the deposition of PW.1 (i.e., the present plaintiff - Sri Jampana Srirama Raju) in OS No.1276/2009, and
(xv) Ex.D-8 - a certified copy of an order dated 11- 11-2019 on I.A.No.1/15 (under Order VI Rule 17 CPC) in OS No.1276/2009 ; and from oral evidence 64 OS.NO.9435/2014 of PW.1 (GPA holder of the plaintiff) and DW.1 (defendant No.4), the following proposition of facts stand well established. Throughout, right from 19- 12-1992 and onwards up-to-date, it is (in fact, ought to be) the constant contention of the defendants No.6 and 7 and the plaintiff that Sri G.V. Veerasetty has executed an agreement of sale dated 19-12- 1992 as per Ex.P-2, and GPA dated 21-12-1992 in respect of piece of land (carved out of the plaint 'A' schedule property) measuring 160 feet from East to West and 115 feet from North to South (which is fully described in the schedules of Ex.P-2 and Ex.P-
3). In the written statement filed by Sri G.V. Veerasetty in OS No.6254/1996 ( a certified copy of which is produced and marked at Ex.P-38), execution of Ex.P-3 GPA dated 21-12-1992 is admitted with further explanation that Sri G.V. Veerasetty cancelled the said GPA subsequently. In Ex.P-24 - judgment in OS No.6254/1996, this Court has held that Sri G.V. Veerasetty failed to prove cancellation of the said GPA. This leads to a 65 OS.NO.9435/2014 conclusion that execution of Ex.P-2 - agreement of sale dated 19-12-1992 and Ex.P-3 - GPA dated 21- 12-1992 stand proved. To put it in other words, the plaintiff has been able to prove that agreement of sale cum GPA sale transaction has taken place, in respect of the land described in Ex.P-2 and Ex.P-3, between Sri G.V. Veerasetty and the defendant No.6.
24. Based on the said proved fact, the questions which would arise for consideration of this Court in this judgment would be :
(i) Whether the defendant No.6 has derived valid title over the land (described in Ex.P-2 and Ex.P-3) from Sri G.V. Veerasetty under Ex.P-2 - agreement of sale dated 19-12-1992 and Ex.P-3 - GPA dated 21-12-1992 ?
(ii) Whether the defendant No.7 has derived valid title over the land (described in Ex.P-2 and Ex.P-3) from defendant No.6 under Ex.P-7 - sale deed dated 27-10-1995 ?66 OS.NO.9435/2014
(iii) Whether the plaintiff has derived valid title over the plaint 'B' schedule property (which is carved out of the land described in the schedules of Ex.P-2 and Ex.P-3) from the defendant No.7 under Ex.P-19 sale deed dated 13-12-2005 ?
25. In (2011) 11 S.C.R. 848 Suraj Lamp and Industries Pvt. Ltd., the Hon'ble Supreme Court has ruled thus :
"16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer 67 OS.NO.9435/2014 is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. 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.
19. 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 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 68 OS.NO.9435/2014 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."
26. Apart from the Ex.P-2 agreement of sale dated 19-12-1992 and Ex.P-3 GPA dated 21-12-1992 based on which the defendant No.6 has executed Ex.P-7 sale deed dated 27-10-1995 and, in turn, the defendant No.7 has executed Ex.P-19 sale deed dated 13-12-2005, it is necessary to notice other documents in order to appreciate the contention of the learned Advocate for the plaintiff that Ex.P-3 GPA is acted upon by auhtorized authorities and as such the guidelines issued by the Hon'ble Supreme Court in Suraj Lamp case (supra) to the effect that if the documents relating to 'S.A/G.P.A./WILL transactions' has been accepted, acted upon by BDA or other developmental authorities or by the 69 OS.NO.9435/2014 Municipal or Revenue authorities to effect mutation, they need not be disturbed, merely on account of the decision of the Hon'ble Supreme Court that Suraj Lamp case (supra).
27. Ex.P-6 is the Katha certificate dated 28-09- 1996 in respect of open land measuring 57½ feet x 160 feet bearing assessment No.863/74/1D. Ex.P-2 and Ex.P-3 are acted upon as the defendant No.6 has produced Ex.P-2 and Ex.P-3 before the Sub- Registrar for the purpose of execution of Ex.P-7 sale deed dated 28-10-1995 under which the defendant No.7 has purchased said open land measuring 57.6 feet x 160 feet from Sri G.V. Veerasetty through is GPA holder namely, the defendant No.6 Sri K.N. Jayaprakash. The transaction as per Ex.P-7 sale deed dated 28-10-1995 is acted upon by way of entry in the Encumbrance certificate. Likewise, Ex.P-19 sale deed dated 13-12-2005 is also executed through registration which is registered by the competent registering authority. Ex.P-23 is the 70 OS.NO.9435/2014 tax demand register extract pertaining to said open land bearing property No.74/1D for the year 1996-
97. It is standing in the name of the defendant No.7 Sri M. Bhakthavathsalam. It is maintained by the then City Corporation of Bangalore. Ex.P-27 is the property tax demand register extract for the year 2011-12 in respect of said land bearing property No.74/1D/1 issued by the BBMP. It is issued on 24-11-2011. In Ex.P-27 an entry is seen where the name of the defendant No.7 is deleted and the name of the plaintiff is entered as owner of the said land. Ex.P-29 to Ex.P-33 are the tax paid receipts in respect of said open land for the yeas from 2016-21 [of course, subsequent to the judgment of the Hon'ble Supreme Court in Suraj Lamp case (supra)]. The said tax paid reeipts are entered in the name of the plaintiff. Ex.P-34 is a certificate issued by the BBMP in respect of said open land on 30-03-2021 in the name of the plaintiff. Ex.P-35 is property tax demand register extract for the year 2020-21 pertaining to the said 71 OS.NO.9435/2014 land and the same is standing in the name of the plaintiff. Ex.P-36 is a receipt issued by the BBMP towards improvement charges in respect of said open land. It is dated 30-03-2021.
28. A perusal of the above noted documents would clearly indicate that Ex.P-2 - Agreement of sale dated 19-12-1992 and Ex.P-3 - GPA dated 21-12- 1992 are acted upon before the Jurisdictional Sub- Registrars, BBMP Authority etc., even much prior to the judgment of the Hon'ble Supreme Court in Suraj Lamp case (supra).
29. So far as the doctrine of resjudicata is concerned, the following facts and circumstances may be discussed:
Whether the present suit is hit by doctrine of resjudicata is the mixed question of law and fact involved in this case. This question is essentially based on the judgments and decrees are :72 OS.NO.9435/2014
29.1 The judgment and decree of this City Civil Court (XVIIth Additional City Civil Court) in OS No.6254/1996 in the matter of Sri P.S. Santhosh and three others vs. Sri G. Veerasetty, DD on 22-12-
2007. A certified copies of the said judgment and decree are produced and marked at Ex.P-24 and Ex.P-25 (Ex.D-1 and Ex.D-2).
29.2 The jdugment and decree of this City Civil Court (XXII Addl. City Civil Court) in OS No.1275/2009 in the matter of Sri Jampana Srirama Raju vs. Sri G.V. Veerashetty, DD on 30-11-2012. A certified copy of the said judgment and decree is produced and marked at Ex.P-17.
29.3 The judgment and decree of the Hon'ble High Court of Karnataka in RFA No.782/2008 in the matter of Sri M. Bhaktavatsalam vs. Sri G. Veerasetty and 3 others DD on 19-07-2012. The said case arose from the said judgment and decree in said OS No.6254/1996. The present plaintiff and 73 OS.NO.9435/2014 2 others had filed an application under Order I Rule 10(2) of the Code of Civil Procedure, 1908, for their impleadment as respondents No.5 to 7 in said RFA No.782/2008. A certified copy of the said application is produced and marked at Ex.D-4. Vide order dated 07-07-2010, the said impleadment application in RFA No.728/2008 was dismissed by the Hon'ble High Court of Karnataka. A certified copy of the said order dated 07-07-2010 is produced and marked at Ex.D-5.
29.4 The judgment and decree of this City Civil Court (CCH.43) in OS No.9133/2015 in the matter of M/s Primatex Apparels India Pvt. Ltd., vs. Smt. Malathi Girish, DD on 15-06-2022. Certified copies of the said judgment and decree are produced and marked as Ex.D-18 and Ex.D-19.
29.5 The judgment and decree of this City Civil Court (CCH.43) in OS No.9135/2015 in the matter of M/s Infomark Marketing Pvt. Ltd., vs. Smt. Malathi 74 OS.NO.9435/2014 Girish, DD on 15-06-2022. Certified coopies of the said judgment and decree are produced and marked at Ex.D-20 and Ex.D-21.
30. The two suits in OS No.6254/1996 and OS No.1275/2009 pertain to the present plaint 'B' schedule property. The two suits in OS No.9133/2015 and OS No.9135/2015 do not pertain to the present plaint 'B' schedule property. Said two suits in OS No.6254/1996 and OS No.1275/2009 are bare injunction suit. No issue was framed in the said two suits touching the title over the present plaint 'B' schedule property. No fining was returned in the said two suits regarding the title over the present plaint 'B' schedule property.
31. In (2008) 5 SCR 331 Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs and Others, the Hon'ble Supreme Court has ruled thus at para 16 :
"16. This Court in Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer 2000 (3) SCC 350, noticed the apparent conflict in the views expressed in Vanagiri and Sulochana 75 OS.NO.9435/2014 Amma and clarified that the two decisions did not express different views, but dealt with two different situations, as explained in Corpus Juris Secundum (Vol.50, para 735, p.229):
"Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title."
In Vanagiri, the finding on possession did not rest on a finding on title and there was no issue regarding title. The case related to an agricultural land and raising of crops and it was obviously possible to establish by evidence who was actually using and cultivating the land and it was not necessary to examine the title to find out who had deemed possession. If a finding on title was not necessary for deciding the question of possession and grant of injunction, or where there was no issue regarding title, any decision on title given incidentally and collaterally will not, operate as res judicata. On the other hand, the observation in Sulochana Amma that the finding on an issue relating to title in an earlier suit for injunction may operate as res judicata, was with reference to a situation where the question of title was directly and substantially in issue in a suit for injunction, that is, where a finding as to title was necessary for grant of an injunction and a specific issue in regard to title had been raised. It is needless to point out that a second suit would be barred, only when the facts relating to title are pleaded, when a issue is raised in regard to title, and parties lead evidence on the issue of title and the 76 OS.NO.9435/2014 court, instead of relegating the parties to an action for declaration of title, decides upon the issue of title and that decision attains finality. This happens only in rare cases. Be that as it may. We are concerned in this case, not with a question relating to res judicata, but a question whether a finding regarding title could be recorded in a suit for injunction simpliciter, in the absence of pleadings and issue relating to title."
32. Reverting back to the facts of this case, it may be noticed that the said two suits in OS No.6254/1996 and OS No.1275/2009 are bare injunction suit. No issue was framed in the said two suits touching the title over the present plaint 'B' schedule property. No fining was returned in the said two suits regarding the title over the present plaint 'B' schedule property. The facts of the case on hand do not pass the test of law as declared well settled in the judgment of the Hon'ble Supreme Court in Anathula Sudhkar case (supra).
33. In (2020) 5 SCR 1 Shri Uttam Chand (D) Through LRs vs. Nathu Ram (D) through LRs and Others, the Hon'ble Supreme Court decreed the suit 77 OS.NO.9435/2014 for possession holding that the plaintiff therein had proved title over the suit property therein and also by holding that the defendants therein had failed to prove adverse possession.
34. In (2019) 9 SCR 37 Sopan Rao and Another vs. Syed Mehmood and Others at para 9, the Hon'ble Supreme Court has ruled thus :
"9. It was next contended by the learned counsel that the suit was not filed within limitation. This objection is totally untenable. Admittedly, the possession of the land was handed over to the Trust only in the year 1978. The suit was filed in the year 1987. The appellants contend that the limitation for the suit is three years as the suit is one for declaration. We are of the view that this contention has to be rejected. We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is 78 OS.NO.9435/2014 bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Therefore, there is no merit in this contention of the appellants."
35. So far as the present suit being barred by time is concerned, it has to be remembered that the plaintiff has filed this suit for recovery of possession based on title. Bearing in mind, the said fact, it would be sufficient to refer to a recent judgment of the Hon'ble Supreme Court in Sopan Rao case (supra).
36. Applying the tests laid down by the Hon'ble Supreme Court in Sopan Rao case (supra) to the facts of the case on hand, it may be noticed that 79 OS.NO.9435/2014 the defendants No.1 to 5 and 8 have denied the very execution of Ex.P-3 by Sri G.V. Veerasetty. But, however, the defendants No.1 to 5 have not set up a plea of adverse possession, no issue is framed regarding adverse possession, no evidence is adduced regarding adverse possession and hence, question of proving the adverse possession in the case on hand would not arise at all. Once the adverse possession is not established by the defendants No.1 to 5, the suit cannot be said to be barred by limitation under Article 65 of the Limitation Act, 1963.
37. The judgment of the Hon'ble Supreme Court in AIR 2011 Supreme Court 3590 Khatri Hotels Private Limited and Anr v. Union of India and Another, relied on by the learned Advocate for the defendants No.1 to 5 in support of his arguments that the present suit is covered by the Article 58 of the Limitation Act, 1963, is not applicable to the facts of the case on hand. The Hon'ble Supreme 80 OS.NO.9435/2014 Court has noted in the said judgment that the suit property in the said case stood automatically vested in the Central Government and, in turn, the Central Government has transferred the suit property therein to the Development Authority. The case on hand does not involve a fact to the effect that plaint 'B' schedule property is vested with the Government. Hence, it is Article 65 (but, not Article
58) of the Limitation Act, 1963, which applies to the facts of this case. Hence, the judgment of the Hon'ble Supreme Court in Khatri Hotels Pvt. Ltd., (supra) is not helpful to the defendants No.1 to 5 in this case.
38. The learned Advocate for the defendants No.1 to 5 ha relied upon a judgment of the Hon'ble High Court of Delhi in AIR 2000 Delhi 336 Ashok K. Khurana v. M/s. Steelman Industries and another (supra). The judgment of the Hon'ble High Court of Delhi in Ashok K. Khurana case (supra) is not applicable to the case on hand as the facts in both 81 OS.NO.9435/2014 the cases are different and the case on hand is squarely covered by the law declared by the Hon'ble Supreme Court in Sopan Rao case (supra).
39. The learned Advocate for the defendants No.1 to 5 has relied upon a judgment of the Hon'ble Supreme Court in (2014) 2 Supreme Court Cases 269 Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others (supra) for the proposition of law that in a suit for declaration of title and possession, the plaintiff must succeed on the merits of the case of the plaintiff and that if the plaintiff fails to establish his title over the suit property the plaintiff must be non-suited even if title set up by the defendants is found agianst the defendants.
40. For the proposition of law that if possession of the plaintiff is not disputed and if there is no dispute regarding title, there is no need to seek for declaration of title, the learned Advocate for the 82 OS.NO.9435/2014 defendants No.1 to 5 has relied upon a judgment of the Hon'ble Supreme Court in (2021) 3 Supreme Court Cases 675 A. Subramanian and Another v. R. Pannerselvam (supra).
41. It must be remembered that in the pleadings in the written statement of the defendants No.1 to 5, it is asserted that the plaint 'B' schedule property is part of 1 acre 2 guntas of land and that the defendant No.4 is in possession of the plaint 'B' schedule property.
42. In view of the judgments of this Court as per Ex.P-17 and Ex.P-24 in the suits in OS No.1275/2009 and in OS No.6254/1996 respectively, it is well settled proposition of fact by now that it is the defendants No.1 to 5 or rather it is defendant No.4 who is in possession of the plaint 'B' schedule property and certainly it is not the plaintiff who is in possession of the plaint 'B' schedule property. The plaintiff has not produced any better materials than 83 OS.NO.9435/2014 which were produced in the said two suits. So far as the question of fact to the effect that the plaintiff is in possession of plaint 'B' schedule property is concerned, the findings recorded in the said two judgments would operate as resjudicata in this case. Even the oral evidence adduced by PW.1 in this case does not show any better materials to take any view contrary to the findings recorded in the said two judgments. Hence, the question of fact regarding alleged interference has to be said to be non-existent.
43. So far as the defendant No.7 his concerned, under the above noted facts and circumstances of the case on hand even though the defendant No.7 may not be a necessary party in the strict sense, yet he is a proper party to explain away certain facts and circumstances which are in issue in this suit. Hence, the suit is not bad for mis-joinder of the defendant No.7.
84 OS.NO.9435/2014
44. In view of the various entries pertaining to the plaint 'B' schedule property made by the BBMP authorities and also in view of the fact that Ex.P-7 - sale deed dated 27-10-1995 and Ex.P-19 sale deed dated 13-12-2005 have taken place and acted upon as noticed supra and revenue entries are being entered based on the said transactions, in my considered view, the exceptions carved out by the Hon'ble Supreme Court in para 18 in Suraj Lamp case (supra) to the effect that if transactions (like Ex.P-2 agreement of sale dated 19-12-1992 and Ex.P-3 GPA dated 21-12-1992) have been acted upon by authorities like BBMP or Revenue authorities to effect mutation etc., prior to the said judgment in Suraj Lamp case, they need not be disturbed merely on account of the judgment of the Hon'ble Supreme Court in Suraj Lamp case (supra) is applicable to the facts of this case and in my considered view, Ex.P-2, Ex.P-3, Ex.P-7 and Ex.P-19 are saved by the said exception carved out by the 85 OS.NO.9435/2014 Hon'ble Supreme Court in para 18 of its judgment in Suraj Lamp case (supra).
45. In view of the above conclusions, my answer to issues No.1 to 6 are as follows :
45.1 The plaintiff has proved that the plaintiff is the owner of the plaint 'B' schedule property.
Hence, issue No.1 is held in the Affirmative. 45.2 The plaintiff has failed to prove that the plaintiff is in possession of the plaint 'B' schedule property as on the date of filing of this suit. Hence, issue No.2 is held in the Negative.
45.3 In view of the fact that the plaintiff has failed to prove his possession over the plaint 'B' schedule property, question of alleged interference would not arise at all. Hence, issue No.3 is held in the Negative.
86 OS.NO.9435/201445.4 The defendant No.7 may not be a necessary party, but, he is a proper party to this suit. Hence, the suit is not bad for mis-joinder of defendant No.7. Hence, issue No.4 is held in the Negative. 45.5 Article 58 of the Limitation Act, 1963 is not applicable to the facts of the case on hand as the suit is one for recovery of possession of plaint 'B' schedule property based on title. It is Article 65 of the Limitation Act, 1963 which is applicable to the facts of the case on hand. In view of the law declared by the Hon'ble Supreme Court as noticed supra and also in view of the fact that the defendants No.1 to 5 have not pleaded and established any adverse possession over the plaint 'B' schedule property, the present suit is not barred under Article 65 of the Limitation Act, 1963. Hence, issue No.5 is held in the Negative.
45.6 Earlier suits in OS No.1275/2009 and OS No.6254/1996 were bare injunction suits. Question 87 OS.NO.9435/2014 of title was not an issue in both the said suits. The Court has not recorded any findings on the title in the said two suits. Hence, in view of the law enunciated by the Hon'ble Supreme Court in Anathula Sudhakar case (supra) which is reproduced supra, in the facts and circumstances of the case on hand, the present suit for declaration of title, consequential relief of Permanent Injunction and in the alternative for consequential relief of recovery of possession is not hit by principles of resjudicata. Hence, issue No.6 is held in the Negative.
46. ISSUE NO.7: In view of the findings recorded on issues No.1 to 6, the plaintiff is entitled for the relief claimed. Hence, issue No.7 is held in the Affirmative.
47. ISSUE NO.8: Hence, the following :
ORDER (1) The suit is decreed with costs.88 OS.NO.9435/2014
(2) It is declared that the plaintiff is the absolute owner of the plaint 'B' schedule property.
(3) The defendants No.1 to 5 are
directed to hand over vacant
possession of the plaint 'B' schedule property to the plaintiff. If the defendants No.1 to 5 failed to hand over vacant possession of the plaint 'B' schedule property, the plaintiff is at liberty to recover possession of the plaint 'B' schedule property through the process of Court.
(4) Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 4th day of January 2024) (D.P. KUMARA SWAMY) VI Addl. City Civil & Sessions Judge Bengaluru City.
89 OS.NO.9435/2014ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Nagabhushan B.N. dt: 20-07-2019
(b) Defendants side :
D.W.1 Smt. Malathi Girish dt: 30-05-2022
II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Special Power of Attorney
Ex.P.2 Sale agreement
Ex.P.3 General Power of Attorney
Ex.P.4 General Power of Attorney
Ex.P.5 Property Register extract
Ex.P.6 Khatha transfer certificate
Ex.P.7 Original sale deed dt: 25-10-1995
Ex.P.8 Rectification deed dt: 28-06-1996
Ex.P.9 to 4 tax paid receipts
P.12
Ex.P.13 4 Encumbrance certificates to 16 Ex.P.17 Copy of judgment in O.S. No.1275/2009 Ex.P.18 Joint Development agreement Ex.P.19 Sale deed dt: 13-12-2010 Ex.P.20 2 property tax receipts & P.21 Ex.P.22 Tax paid receipt Ex.P.23 Certified copy of Tax assessment dt: 28-9- 1996 90 OS.NO.9435/2014 Ex.P.24 Certified copy of judgment dt: 22-12-2007 passed in OS No.6254/1996 Ex.P.25 Certified copy of decree dt: 22-12-2007 passed in OS No.6254/1996 Ex.P.26 Certificate dt: 14-11-2011 Ex.P.27 Katha extract for the year 2011-2012 Ex.P.28 Certified copy of conversion order 24-05-1993 Ex.P.29 Property tax receipts to P.33 Ex.P.34 Certificate dt: 30-03-2021 issued by BBMP Ex.P.35 Katha extract for year 2020-2021 Ex.P.36 Tax paid receipt Ex.P.37 Official memorandum dt: 27-10-1992 Ex.P.38 Certified copy of written statement in OS No.6254/1996 Ex.P.39 Certified copy of statement in O.S. P.39(a) No.1275/2009 Marked portion in respect of GPA in Ex.P.39
(b) Defendants side :
Ex.D.1 Certified copy of judgment in OS No.6254/1996 Ex.D.2 Certified copy of decree in OS No.6254/1996 Ex.D.3 Certified copy of order dt: 19-07-2012 in RFA No.782/2008 Ex.D.4 Implement application in RFA No.782/2008 Ex.D.5 Certified copy of order dt: 07-07-2010 in RFA No.782/2008 Ex.D.6 Certified copy of amended plaint in OS No.1276/2009 Ex.D.7 Certified copy of evidence of PW.1 in O.S. No.1276/2009 Ex.D.8 Certified copy of I.A. No.1/2015 in O.S. No.1276/2009 91 OS.NO.9435/2014 Ex.D.9 Certified copy of order sheet in OS No.1276/2009 Ex.D.10 Certified copy of Memo for withdrawal in OS No.1276/2009 Ex.D.11 Certified copy of letter dt: 26-09-1996 D.11(a) Typed copy of Ex.D-11 Ex.D.12 Certified copy of Gift deed dt: 27-09-2010 Ex.D.13 Certified copy of certificate dt: 14-09-2021 issued by BBMP Ex.D.14 Certified copy of document register for the year 2021-2022 in respect of plaint schedule property.
Ex.D.15 Certified copy of Encumbrance certificate from 01-04-2010 to 04-09-2021 Ex.D.16 Certified copy of tax paid receipt Ex.D.17 Certified copy of index of land D.17(a) Typed copy of Ex.D.17 Ex.D.18 Certified copy of judgment and decree in OS & D.19 No.9133/2015 Ex.D.20 Certified copy of judgment and decree in OS & D.21 No.9135/2015 Ex.D.22 Death certificate of father of 4th defendant Ex.D.23 Sanctioned plan Ex.D.24 Xerox copy of plaint in OS No.6332/2021 Ex.D.25 Certified copies of Order sheet and Memo for & D.26 withdrawal in OS No.1276/2009 Ex.D.27 Photos VI Addl.City Civil & Sessions Judge Bengaluru City 92 OS.NO.9435/2014