Bangalore District Court
Sri.A.Govindappa vs Sri.K.Gopala on 4 March, 2015
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.NO.43).
PRESENT: Sri. LEKKADAPPA JAMBIGI,
B.Com., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
Dated this the 4th day of March 2015.
O.S.No.4274/2011
Plaintiff:- Sri.A.Govindappa
S/o. late Sri.Appanna,
Aged about 66 years,
R/at Thanisandra Village,
Arabic College Post,
Bangalore East Taluk,
Bangalore.
(Sri.M.Lakshminarayan, Adv.)
v.
Defendant:- Sri.K.Gopala,
S/o. late Kannan,
Aged about 46 years,
R/at No.108, Muthappa Block,
Ganganagar, R.T.Nagar Post,
Bangalore-560 032.
(Sri.V.D.Raviraj, Adv.)
Date of institution of the suit : 17.06.2011,
Nature of the suit : Declaration, Mandatory &
Permanent Injunction
2 O.S.No.4274/2011
Date of commencement of : 10.02.2014
Recording of the evidence
Date on which the Judgment : 04.03.2015
was pronounced
Total Duration : Years Months Days
03 08 17
(LEKKADAPPA JAMBIGI)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
JUDGMENT
This is a suit filed by the plaintiff for the relief of declaration that the Sale Deed executed in favour of the defendant dated 30.09.1999 as fraudulent and sham document and not binding on the plaintiff.
The plaintiff has also sought for mandatory injunction, directing the defendant to remove the construction if any over the disputed schedule property. In default, permit the plaintiff to remove the construction and recover the cost from the defendant.
The plaintiff has also sought for permanent injunction, restraining the defendant or anybody on his behalf from interfering 3 O.S.No.4274/2011 with the plaintiff's possession and enjoyment of the suit schedule property with costs.
2. The suit schedule property is the piece of land in Survey No.63/2 situated at Thanisandra Village, measuring 1 acre 31 guntas. The disputed schedule property is shown as immovable property bearing House on Site No.29 to 33, with V.P.Katha No.516, Assessment No.63/2, situated at Thanisandra Village measuring East to West: 200 feet and North to South:30 feet.
3. The brief facts of the plaintiff's case are as under:-
The plaintiff purchased the property measuring 1 acre 31 guntas in Survey No.63/2 shown in schedule from one Chikkanarayanappa, A.Munibyrappa and Krishnappa and their sons for valuable consideration under an Agreement of Sale dated 30.09.1989. They have executed an Irrevocable General Power of Attorney on the same day. The plaintiff on the basis of Agreement of Sale and Irrevocable General Power of Attorney sold some portion of the schedule property. In the month of April 2001, the vendors of the plaintiff namely Chikkanarayanappa, Morigowda, 4 O.S.No.4274/2011 Somanna, A.Krishnappa, Lakshmikumar, A.Muni Byrappa, M.Srinivas, M.Prakash and M.Manjunath along with their henchmen tried to interfere with the plaintiff's possession and enjoyment of the schedule property. Hence, the plaintiff has filed the suit in O.S.No.2921/2001 before the City Civil Court, Bangalore and the said suit was decreed on 17.02.2007. Thereafter, one Srinivas, son of Munibyrappa and others filed a suit for partition against Chikkanarayanapppa and others in O.S.No.8077/2006 before City Civil Court, Bangalore. The plaintiff was made as defendant No.2, but the said suit was dismissed. Thereafter, the plaintiff has filed the suit for injunction against one M.Umesh in O.S.No.3236/2011 before the City Civil Court, Bangalore, an ad-interim injunction is granted in that suit and it is pending. Now the defendant along with his henchmen tried to interfere with the influence and instigation of some local touts in respect of Site No.29 to 33 formed in the suit schedule property. On 10.06.2011 at about 11.30 a.m. the defendant and his followers came near the property and tried to interfere with the plaintiff's possession and enjoyment of the suit property. The 5 O.S.No.4274/2011 plaintiff approached the jurisdictional police and they told the plaintiff to approach the Civil Court. Hence, the suit is filed.
Further, it is stated that Narayanappa has conveyed Site Nos.29 to 33 formed in Survey No.63/2 of Thanisandra and it is referred as disputed schedule property. Sri.Narayanappa has conveyed the disputed schedule property in favour of defendant under a registered Sale Deed dated 30.09.1999. It is for the first time the plaintiff came to know the alleged Sale Deed. The plaintiff has secured the certified copy of the Sale Deed. The defendant has created and fabricated Sale Deed in respect of disputed schedule property with a malafide intention to knock off the same by application of fraud and mischief. Chikkanarayanappa and others are the owners, but the Sale Deed is executed by one Narayanappa. Hence, the Sale Deed is not executed by the real owner Chikkanarayanappa. The vendor of the Sale Deed in the name of defendant is the person, who is having no right, title or interest in the disputed schedule property. The name of Chikkanarayanappa is shown as Narayanappa in the alleged Sale Deed.
Chikkanarayanappa has not executed the Sale Deed. 6 O.S.No.4274/2011 Chikkanarayanappa alone has no exclusive right over the disputed schedule property. The plaintiff is a signatory to most of the sites formed out in the schedule property and sold it to others. The plaintiff has not executed or signed the alleged Sale Deed in favour of defendant. Hence, it is not sustainable. On these grounds it is prayed to grant the reliefs.
4. After issuance of summons, the defendant has appeared through the counsel and filed written statement and additional written statement. The defendant has denied the allegations of the plaint. As per the contention of the plaintiff, he is the holder of Agreement of Sale of the suit schedule property and he is also the GPA Holder. The plaintiff has not taken any legal steps to compel the landlords to enforce the contract under the said Agreement. Even after denial of the Agreement, he has not taken steps to enforce the contract. On the contrary, he has made an attempt to become owner of the suit schedule property by obtaining declaration from the court. His claim was rejected in O.S.No.2921/2001. The plaintiff has to act in the name of master only and he has no independent right over the same. Hence, the 7 O.S.No.4274/2011 plaintiff is not entitled to act in the individual capacity. Hence, the suit is not maintainable. The allegations of the plaint averments are denied in the written statement. The filing of the suit in O.S.No.2921/2001 and O.S.No.8077/2006 are denied. The decree passed in these suits are also denied. There is no cause of action to file the suit. The defendant is the absolute owner of Site No.29 to 33 formed in land bearing Survey No.63/2 of Thanisandra. The defendant is in possession and enjoyment of the same from the date of purchase under the Sale Deed. The plaintiff is not in possession of the above said sites. No incidents are taken place on 10.06.2011 at about 11.30 a.m. as alleged in the plaint. Hence, there is no cause of action. The court fee paid is not proper. Hence, on these grounds it is prayed to dismiss the suit with costs.
5. In the additional written statement, the defendant has denied the allegations of the plaint. After filing the written statement by this defendant, the plaintiff has filed the application for amendment of pleadings and prayer by converting the suit for bare injunction to suit for declaration and mandatory injunction. The plaintiff has suppressed all the known and material facts and 8 O.S.No.4274/2011 got amended the pleadings. The plaintiff contends that the sites bearing No.29 to 33 are formed in the suit schedule property and the defendant is trying to interfere with the same. The defendant has contended that he is the owner of said 5 sites formed in Survey No.63/2. Now, by way of amendment the plaintiff is claiming declaration and mandatory injunction. According to the plaintiff, there are with the schedule mentioned by the defendant as Site No.29 to 33. The plaintiff ought to have mentioned the measurement and boundaries of Site No.29 to 33. The plaintiff has to stand on his own legs to claim the relief of declaration. But identification of the property itself is not specific. The defendant has mentioned the property purchased by him in the suit schedule land. After filing the written statement, the plaintiff came to know regarding the Sale Deed is denied. There is no fraud, misrepresentation played by the defendant. Chikkanarayanappa has no exclusive right to sell the schedule property. Prior to the filing of this suit, suit filed by the very same plaintiff for the relief of declaration against the landlords in O.S.No.3921/2001 has been rejected as per the judgement dated 17.02.2007. Hence, present 9 O.S.No.4274/2011 suit is not maintainable. Hence, on these grounds it is prayed to dismiss the suit with costs.
6. On the basis of pleadings above, the issues and additional issues arisen for consideration are as under:-
ISSUES
1. Whether the plaintiff proves that he was in lawful possession over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendant?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that the Sale Deed executed in favour of defendant on 30.09.1999 registered as document No.4812/1999-2000 dated 06.01.2000 is a sham, not valid and not binding on the plaintiff?
10 O.S.No.4274/2011
2. Whether plaintiff is entitled for Mandatory Injunction for directing defendant to remove the suit property?
3. Whether the Suit is barred by Limitation?
4. What Order or Decree?
7. To prove the case of the plaintiff, the plaintiff examined himself as PW-1 and marked Ex.P1 to P14. On the contrary, the defendant is examined through GPA Holder as DW-1 and he has marked Ex.D1 to D31.
8. I have heard the arguments.
9. My findings on the above said issues are as follows:-
Issue No.1:- In the negative.
Issue No.2:- In the negative.
Issue No.3:- In the negative.
Issue No.4:- As per final order.
Addl.Issue No.1:- In the negative.
Addl.Issue No.2:- In the negative.
Addl.Issue No.3:- In the affirmative.
Addl.Issue No.4:- As per final order.
for the following:-
11 O.S.No.4274/2011
REASONS
10. Issue No.1 to 3 & Addl.Issue No.1 to 3:-
As these issues are interlinked, I answer them together. Initially, the plaintiff has filed the suit for injunction. Thereafter, the plaintiff has converted the suit into declaration and mandatory injunction. The suit property is shown as Survey No.63/2 of Thanisandra. The defendant has taken up the defence and he has mentioned the disputed schedule property, which are portions of sites in Survey No.63/2, which have been mentioned as Site No.29 to 33. The plaintiff has sought for declaration that the Sale Deed executed in favour of the defendant is null and void. The plaintiff has not sought for declaration regarding his title to the suit property. With these backgrounds, the evidence of the parties is to be weighed.
11. The plaintiff has produced the original Agreement of Sale and GPA, but they are not marked. The plaintiff has produced the certified copy of order sheet, judgment and decree in O.S.No.2921/2001 as Ex.P1 to P3. The certified copy of judgment and decree in O.S.No.8077/2006 are at Ex.P4 and P5. The certified 12 O.S.No.4274/2011 copy of Sale Deed dated 30.09.1989 is Ex.P6. The certified copies of Sale Deeds are Ex.P7 to P12. Further, certified copy of Agreement of Sale is Ex.P13 and certified copy of GPA is Ex.P14. On the basis of Agreement of Sale and GPA the plaintiff claims to be the owner of the property. The plaintiff has to show that he is in lawful possession of the suit property on the date of the suit. The defendant's counsel vehemently argued that GPA and Agreement of Sale will not create any title to the plaintiff over the suit property. As per the Transfer of Property Act, the GPA and Agreement of Sale are not the title deeds.
12. On the contrary, the defendant has produced Ex.D1 to D33. Ex.D1 is the order sheet in O.S.No.887/2001. Ex.D2 is the photo. In the cross-examination of PW-1, he admits these documents, hence they are marked. Ex.D3 is the GPA executed by defendant in favour of his son. Ex.D4 is the Sale Deed dated 30.09.1990. On the basis of which the defendant claims title to the suit property. Ex.D5 and D6 are the Demand Register Extracts. Ex.D7 is the Encumbrance Certificate. Ex.D8 is the Demand Register Extract. Ex.D9 and D10 are the tax paid receipts. Ex.P11 13 O.S.No.4274/2011 is the acknowledgement of the police. Ex.D12 is Electricity Bill. Ex.D13 and D14 are the judgement, decree in O.S.No.887/2001. Ex.D15 and 16 are the plaint and compromise petition in O.S.No.2921/2001. Ex.D17 to 22 are the tax paid receipts. Ex.D23 to D26 are the electricity bills and Ex.D27 to D31 are the photos and CD. On the basis of these documents, the defendant prayed to dismiss the suit. The defendant also claims ownership to the disputed schedule property.
13. Apart from this evidence, oral evidence is also given by the parties. In the evidence of PW-1, the plaintiff has reiterated the averments of the plaint. This witness is cross-examined at length, wherein the learned counsel for the defendant tried to elicit that he has no right over the suit schedule property. It is cross-examined that he has not met with the defendant. Since birth he knows Chikkanarayanappa and his family. They are not related to him. The suit property is the agricultural property at the time of purchase of the same. He formed the layout. He has not taken the Conversion Order, but he has only made the layout plan. The layout plan is not produced by the plaintiff. He admits that the plan 14 O.S.No.4274/2011 is not approved by any authority. The Agreement of Sale is executed by Chikkanarayanappa and other 9 members. He has not asked Chikkanarayanappa to execute the Sale Deed as at that time there was ban of registration. Hence, as per his evidence he has not become the owner of the suit property, but he contends that he has got GPA and Agreement of Sale. If really, the plaintiff has got Agreement of Sale, he could have enforced the said Agreement of Sale, but he has not made any efforts for getting registration of the Sale Deed. Hence, only on the basis of the GPA the ownership does not transfer to the plaintiff.
14. Further, it is elicited that one Francis has been summoned in the suit in O.S.No.887/2001. PW-1 signed the order sheet. The portion of the order sheet is marked as Ex.D1(a). A.Govindappa is called as a witness and he has attended and produced the document. Hence, on the basis of this portion, defendant's counsel vehemently argued that A.Govindappa was having knowledge regarding Sale Deed, but he has not made any efforts to challenge it within 3 years. Hence, it is prayed to dismiss 15 O.S.No.4274/2011 the suit. But the plaintiff has shown ignorance in respect of Sale Deed. He has shown difference cause of action in the suit.
15. It is elicited that Chikkanarayanappa was the owner of the suit property. It is suggested that as per Ex.P14 GPA, Chikkanarayanappa or his family members have not given any power to him to sell the property, he has denied the same. In the year 2001, the court has not declared him as owner as per Ex.P2. It is the contention of the plaintiff that he acquired the suit property on the basis of the GPA and Agreement of Sale. The learned counsel for the defendant vehemently argued that GPA and Agreement of Sale are not the title deeds and on the basis of the same the plaintiff would not get title to the suit property. In the present case the plaintiff has sought for declaration of Sale Deed executed by Narayanappa in favour of the defendant is null and void and if that aspect is proved, then the plaintiff will become the owner of the suit property. But even to substantiate this aspect the documents relied upon by the plaintiff would not create any title to the plaintiff. The GPA is only the authority to act on behalf of the principal. The Agreement of Sale is only the agreement between 16 O.S.No.4274/2011 the parties. It will not become the title deed. Hence, the plaintiff's contention throughout the evidence is that he has become the owner of the suit property on the basis of GPA and Agreement of Sale.
16. It is pertinent to note that the plaintiff has claimed right in respect of suit schedule property i.e., 1 acre 31 guntas in Survey No.63/2. But after the relief is claimed by way of amendment the plaintiff has shown the disputed property which is portion of Survey No.63/2 in site Nos.29 to 33. Hence, in respect of these 5 sites it is shown as disputed property. The claim is in respect of these disputed sites.
17. Further, in the cross-examination of PW-1 the learned counsel for the defendant tried to elicit that the defendant has become the owner of the suit property and the documents of title have been produced by the defendant. The title of the defendant which is on the basis of the Sale Deed is challenged by the plaintiff. It is pertinent to note that the plaintiff in this case has not sought for declaration to declare that he is the owner of the suit property. He claims declaration that the Sale Deed executed by Narayanappa in 17 O.S.No.4274/2011 favour of defendant is null and void. Even if the declaration is granted, the plaintiff would not get right on the basis of the said declaration as he has not sought for any declaration of his title to the suit property. The plaintiff has sought for only injunction in respect of suit property. He is not specific in respect of his case. In the cause of action, the plaintiff has shown that there is obstruction by the defendant in respect of 5 sites shown as Site Nos.29 to 33, which are shown as disputed property. The cause of action shown to the suit property in Survey No.63/2 is in respect of injunction only. Hence, in this regard, the plaintiff is not specific in respect of cause of action.
18. On the contrary, the defendant is examined as DW-1, wherein he has contended that he has become the owner to the suit property on the basis of the Sale Deed. The plaintiff intends to show that Narayanappa through whom the defendant has purchased the suit property is not the owner of the suit property. But Chikkanarayanappa and his brother, who are owners, they have not executed any Sale Deed. As per contention of the defendant, Narayanappa and Chikkanarayanappa are one and the same. Even 18 O.S.No.4274/2011 this aspect is suggested to PW-1, but he denied the said aspect. DW-1 has reiterated the averments of the written statement. He denied the execution of power of attorney by Chikkanarayanappa and execution of Agreement of Sale by Chikkanarayanappa to the plaintiff. In this regard, this witness is cross-examined at length. The learned counsel for the defendant vehemently argued that the plaintiff is not expected to stand on the loopholes of the defendant's case and he has to stand on his own leg. The plaintiff has sought for declaration and injunction, under such circumstances he has to prove his case independently. He cannot take the loopholes of the defendant's title and say he has become the owner to the suit property. DW-1 is cross-examined at length. No doubt, this witness goes on denying the allegations regarding execution of the GPA and Agreement of Sale in favour of the plaintiff. On the contrary, he sticks on to the version that he has become the owner to the suit property on the basis of the Sale Deed executed by Narayanappa in his favour. The plaintiff's counsel contends that even if the Sale Deed in favour of the defendant is proved, vendor Narayanappa alone is not having any right to sell the property and 19 O.S.No.4274/2011 as such, the defendant would not acquire any title to the suit property. Hence, case of the defendant is stated in the evidence of DW-1 and he is cross-examined. Nothing is elicited in the cross- examination of DW-1 to show that the plaintiff is the owner of the suit property.
19. There are several suits filed by the plaintiff in respect of suit property against others. The plaintiff has filed O.S.No.2921/2001 the plaint copy is at Ex.D15. In the said plaint, the plaintiff contends that the defendants have not come forward to execute the Sale Deed as per the terms of Agreement of Sale. Hence, this aspect clearly discloses that the plaintiff is not having any title to the suit property. He is not having any document. He is having only Agreement of Sale, which will not create title to the plaintiff. In that suit, the plaintiff has sought for relief of permanent injunction and also declaration that the plaintiff is declared as owner of the suit property. The suit property in the said suit is Survey No.63/2, which is suit property in this case. The said suit has been compromised as per the contention of the plaintiff, but the compromise petition was filed in that case and the court has not 20 O.S.No.4274/2011 accepted the same. The court has passed the judgement in that case, wherein the suit has been partly decreed. The relief of declaration of title on the ground of perfection of ownership by principles of adverse possession has been rejected. The court has granted the relief of injunction. Hence, ownership is not confirmed in that suit. Hence, claim of the plaintiff regarding declaration was already been rejected. The decree is also produced in that case. Hence, that judgement will not come to the help of the plaintiff to show his title to the suit property. The plaintiff claims on the basis of GPA and Agreement of Sale and decree passed in the suit. The GPA will not create any title and Agreement of Sale will not give title to the plaintiff and the decree is also does not help the plaintiff to show his declaration. Hence, these are the things on the basis of which the plaintiff claims the relief of declaration. Hence, none of these aspects have been established by the plaintiff.
20. There is another suit in O.S.No.8077/2006. This suit is for partition. In that suit, Chikkanarayanappa, Krishnappa and Govindappa are shown as defendants and suit is filed by Srinivas and others, who are heirs of Munibyrappa. In that suit also the 21 O.S.No.4274/2011 claim of the plaintiffs has been rejected as suit has been dismissed. Hence, this decree is also not helpful to the plaintiff to show his title.
21. The plaintiff contends that he has purchased the suit property measuring 1 acre 31 guntas in Survey No.63/2 from Chikkanarayanappa, A.Muni Byrappa and Krishnappa and their sons. To substantiate this aspect, the plaintiff has not produced any documents regarding purchase of property. He has produced only Agreement of Sale and GPA. In this regard, learned counsel for the defendant vehemently argued that GPA and Agreement of Sale would not create any title to the plaintiff. In this regard, he has relied upon the decision reported in AIR 1967 SC 744 in between Ram Baran Prasad v. Ram Mohit Hazra, AIR 1987 Delhi 36 in between Imtiza Ali v. Nasim Ahmed, TLKAR 1999 page 193 in between Mittal Investment Corporation v. Additional Commissioner of Commercial Taxes, Zone I. In all these decisions the lordships have observed that GPA and Agreement of Sale would not create title to the parties. He has also relied upon the decision reported in AIR 2012 SC 206, in between Suraj Lamp and 22 O.S.No.4274/2011 Industries Pvt. Ltd. v. State of Haryana, wherein the lordships have observed as follows:-
Transfer of Property Act (4 of 1882), Ss.5,54 - Registration Act (16 of 1908), S.17 - Powers of Attorney Act (7 of 1882), S.2 - Succession Act (39 of 1925), S. 63 - Immovable property - Transfer - Can be validly made only registered Sale Deed - Not by sale agreement /general power of attorney or Will.
In this decision also the lordships have clearly observed that Agreement of Sale or the GPA would not create any title as they are not the transfer of title deeds. Hence, in view of these decisions, the plaintiff has not proved that he is the owner of the suit property.
22. Further, it is the contention of the plaintiff that the plaintiff has filed the suit in O.S.No.2921/2001 against Chikkanarayanappa and others, wherein the court has decreed the suit in favour of the plaintiff. The judgement of the said suit is produced, wherein the relief of declaration sought for by the plaintiff is not granted. The court has observed that the relief of declaration of title on the ground of perfection of ownership by principles of adverse possession is rejected. Hence, it appears that 23 O.S.No.4274/2011 the plaintiff intends to get declaration by one or other modes. In this suit, the plaintiff contends that he has perfected title by adverse possession. But this contention of the plaintiff has been rejected. Anyhow, further the decree has been passed regarding permanent injunction, restraining the defendants or anybody on their behalf from enjoying portion remaining in the suit schedule property, after excluding portions sold by the plaintiff in the suit schedule property in favour of third parties. Hence, that decree clearly discloses that the relief of injunction is granted excluding the properties, wherein the plaintiff has sold it to third parties. Hence, this decree also does not give title to the plaintiff. Hence, on the basis of this decree, the plaintiff cannot seek the declaration.
23. Thereafter, Sreenivas s/o.Munibyrappa and others have filed the suit for partition against Chikkanarayanappa and others in O.S.No.8077/2006, that suit has been dismissed. Hence that dismissal order would not help the plaintiff to show his title. In that suit, the claim of Sreenivas has been rejected. That does not mean that the plaintiff has granted the relief to enjoy the property. The defendant contends that Narayanappa has sold the suit property to 24 O.S.No.4274/2011 him under the Sale Deed. There is evidence that said Narayanappa is Chikkanarayanappa. The plaintiff contends that Narayanappa or Chikkanarayanappa alone are not having any title to the property. Hence, they are not having any right to sell the property. But the rejection of the partition does not mean indirectly that the relief of title has been granted to the plaintiff or his vendors. When the plaintiff has not produced any documents of title regarding his ownership of the property, he is not entitled to get declaration. The plaintiff cannot contend that he is in lawful possession of the suit property on the basis of these averments. In the present suit, the plaintiff has shown the excluding properties in O.S.No.2921/2001 as disputed property. But in respect of those properties the claim of permanent injunction is also rejected in the judgement and decree. But the plaintiff intends to claim again his title to the same property, which cannot be granted.
24. The plaintiff has sought for declaration that the Sale Deed executed by Narayanappa in favour of the defendant is null and void. But he has not shown any ground regarding his claim. The said relief is time barred one. The learned counsel for the 25 O.S.No.4274/2011 defendant vehemently argued that suit of the plaintiff is barred by limitation. The plaintiff has summoned in O.S.No.887/2001 to produce the documents and the order sheet dated 25.02.2009 discloses that the plaintiff appeared in the said suit and signed the order sheet at Ex.D1(a). Hence, the plaintiff was having knowledge regarding Sale Deed. The present suit is filed in the year 2011. The plaintiff has to file the suit within 3 years from the date of knowledge of the Sale Deed. The amendment application has been filed by the plaintiff to include the relief of declaration on 08.06.2012, which is beyond 3 years. Hence, it is contended that suit claim for declaration is time barred one. On considering these dates the suit is filed beyond 3 years period, as such which is barred by limitation.
25. Further, the plaintiff contends that injunction suit is filed by one Umesh in O.S.No.3236/2011 and the said suit is pending, that will not help the plaintiff to show his title.
26. The plaintiff has shown the cause of action in respect of filing the suit for injunction. The same cause of action is shown in 26 O.S.No.4274/2011 respect of relief of declaration. But the defendant is able to show that the plaintiff was aware about the Sale Deed which has been challenged by him when he produced the same in Ex.D1. Hence, imaginary cause of action has been shown by the plaintiff to seek the relief of declaration. The defendant is able to show that earlier to that the plaintiff was having knowledge regarding Sale Deed by Narayanappa in favour of the defendant. If at all anybody is aggrieved it is not the plaintiff in respect of Sale Deed. Narayanappa is the person who has been aggrieved as per the contention of the plaintiff. But against Chikkanarayanappa only the plaintiff has filed the suit. Hence, this aspect goes to show that the plaintiff is not in cordial terms with Chikkanarayanappa or other family members. Anyhow, on the basis of GPA and Agreement of Sale, the plaintiff intends to get the relief of declaration. Hence, the plaintiff has no locus standi to file the present suit. Considering in any way the plaintiff is not entitled to get the relief of declaration and injunction. The plaintiff has failed to establish that he is in lawful possession of the suit property as on the date of the suit. He has failed to establish the interference of the defendant. In the 27 O.S.No.4274/2011 cross-examination of PW-1 itself it is elicited that the defendant has not made any galata with him. The defendant has not come to the suit property and made any galata. Hence, this cross-examination of PW-1 goes to show that there is no cause of action to the plaintiff to file the suit for injunction. Only on some imaginary case the plaintiff has filed the suit. Hence, there is no interference by the defendant. Under these circumstances, the plaintiff is not entitled to get any relief of injunction. The plaintiff has failed to establish that the Sale Deed executed in favour of defendant on 30.09.1999 is sham and void document. When the plaintiff has failed to establish his title and possession over the suit property, he is not entitled to get the relief of mandatory injunction. Hence, suit of plaintiff is to be dismissed and also issue regarding time barred, in view of my discussion the suit of the plaintiff is not filed within 3 years for challenging the Sale Deed. The suit is barred by limitation. Accordingly, I answer Issue No.1 to 3 and Additional Issue No.1 and 2 in the negative and Additional Issue No.3 in the affirmative.
28 O.S.No.4274/2011
27. Issue No.4 and Additional Issue No.4:- In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 4th day of March 2015).
(LEKKADAPPA JAMBIGI) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.Govindappa
(b) Defendants' side:
DW.1 - Sri.G.Shivakumar II. List of documents exhibited on behalf of: 29 O.S.No.4274/2011
(a) Plaintiff's side:
Ex.P1 Certified Copy of Order Sheet in
O.S.NO.3236/2011
Ex.P2 & P3 Judgement and Decree in
OS..No.2921/2001
Ex.P4 & 5 Certified Copy of Judgement and
Decree in O.S.No.8077/2006
Ex.P6 Certified Copy of Sale Deed dated
30.09.1999
Ex.P7 Certified Copy of Sale Deed dated
23.03.1995
Ex.P8 Certified Copy of Sale Deed dated
23.03.1995
Ex.P9 Certified Copy of Sale Deed dated
23.03.1995
Ex.P10 Certified Copy of Sale Deed dated
02.03.2006
Ex.P11 Certified Copy of Sale Deed dated
02.03.2006
Ex.P12 Certified Copy of Sale Deed dated
02.03.2006
Ex.P13 Certified Copy of Agreement of
Sale 30.09.1989
Ex.P14 Certified Copy of GPA
(b) Defendants' side:
Ex.D1 Certified Copy of the Order Sheet in
O.S.No.887/2001
Ex.D1(a) Portion of Order Sheet
Ex.D2 Photo
Ex.D3 Certified Copy of GPA
Ex.D4 Certified Copy of Sale Deed dated
30.09.1999
Ex.D5 & 6 Certified Copy of Demand Register
Extracts
Ex.D7 Encumbrance Certificate
30 O.S.No.4274/2011
Ex.D8 Certified Copy of Demand Register Extract
Ex.D9 & 10 Tax Paid Receipts
Ex.D11 Acknowledgement of Police
Ex.D12 Certified Copy of Electricity Bill
Ex.D13 Certified Copy of Judgement in
OS.887/2001
Ex.D14 Certified Copy of Decree
Ex.D15 Certified Copy of Plaint in OS.2921/2001
Ex.D16 Certified Copy of Compromise Petition in
OS.No.2921/2001
Ex.D17 to 22 Tax Paid Receipts
Ex.D23 to 26 Electricity Bills and Receipts
Ex.D27 to 31 Photographs along with CD
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.
31 O.S.No.4274/2011
(Judgement pronounced in the open Court
and order portion of the same is extracted
as under)
ORDER
Suit of the plaintiff is dismissed.
No order as to costs.
Draw decree accordingly.
(LEKKADAPPA JAMBIGI)
42nd Addl.CC& SJ, Bangalore.