Bangalore District Court
Govindaraju M vs Mehta A K on 25 April, 2026
1 O.S.No.3152/2003
KABC010112092003
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, (CCH-40), BENGALURU CITY.
Present: Mamtaz, M.A., LL.B., P.G.D.C.A.,
XXXIX Additional City Civil and
Sessions Judge, Bengaluru City.
Dated: This the 25th April, 2026
O.S.No.3152/2003
Plaintiff : Sri. M.Govindaraju
S/o Late Muniyappa,
Age 38 Years,
Residing at No.45, AMRUTHA,
2nd Main Road,
Chinnanna Layout,
Kaval Byrasandra,
Bengaluru - 560032.
[By Smt. Nethra G., Advocate]
- Vs -
Defendants :1. Sri. A.K. Metha
S/o not known to the plaintiff
Age about 58 Years,
R/at No.F-39, Hyderabad estate,
Nepean road,
BOMBAY-400036.
2 O.S.No.3152/2003
2. Sri. R. Venkatasubamanian
S/o late Rajagopalan,
age 63 Years
Residing at No.419,
2nd cross,
Indiranagar, 1st stage,
Bengaluru-38.
3. Sri. R. Baskaran
S/o UP Ratnam, age 48 Years,
Residing at Mudaliar road,
No.50, Marigapadadeva,
Bengaluru-50005
4. Sri. B.D. Telagana
S/o Dharamanna, age 68 years,
Residing at No.193,
BEML Layout, 3rd Cross,
Basaveshwaranagar,
west of chord road,
Bengaluru-79.
5. Sri. Amulya S P
age 30 Years,
Rep. by GPA holder
Sri. Aditya.P
age 28 Years,
S/o SN Parthasarathy,
Residing at No.137, lake view,
4th Main, Vinayaka Layout,
Boopasandra,
Sanjayanagar,
Bengaluru-34.
6. Central Excise House
Building Co-operative
Society Ltd
3 O.S.No.3152/2003
O/At Central Revenue Building
Queens Road,
Bengaluru-560 001
Rep by its Secretary
Aged about 54 Years,
7. R.Girja
W/o P. Kothanda Panis,
R/at No.307, Rajalakshmi,
2nd Cross, 4th Main,
2nd Stage, BTM Layout,
Bengaluru-560 076.
8. R. Kothandapani
Aged about 59 Years
S/o Late Rajagopalan,
R/at No 307, Rajalakshmi,
2nd Cross, 4th Main,
2nd stage, BTM Layout,
Bengaluru -560 076.
9. Sri P. Umapathi Raju
R/at No.77/3, 6th Main,
18th Cross, Malleshwar,
Bengaluru- 560055.
10. The Assistant General
Manager
Bank of Baroda,
Palace Orchards Branch,
No.344/6, 4th Main,
Upper palace,
Bengaluru-560080
11. Sri. K. Somashekar
S/o late K.S Krishnappa
aged about 67 years,
4 O.S.No.3152/2003
residing at No.81, 1st Main,
4th Cross, UAS Layout,
Sanjaya Nagar,
Bengaluru - 560094.
12. Smt. Padama Shekar
w/o Dr. K. Somashekar,
aged about 62 years,
residing at No.81, 1st Main,
4th Cross, UAS Layout,
Sanjaya Nagar,
Bengaluru - 560094.
13. Sri. GOPI PM
s/o late Mylaraiah,
aged about 41 years,
residing at No.130, 13th A Main,
Raghavendra mutt Road,
Gokula Extension,
Mathikere,
Bengaluru - 560054.
14. Smt. Lakshmi SC
w/o Gopi PM,
aged about 28 years,
residing at No.130,
13th A Main,
Raghavendra mutt Road,
Gokula Extension, Mathikere,
Bengaluru - 560054.
15. Sri. Narayan Krishna Rao
s/o late M. N Sheshagiri Rao,
aged about 57 years,
residing at Flat No.04,
OM Sai Dham, 1st Main,
4th Cross, Siddhivinayak Layout,
5 O.S.No.3152/2003
RMV 2nd Stage, Sanjay Nagar,
Bengaluru-560094
16. Smt. Usha Krishna Rao
w/o Narayan Krishna Rao,
aged about 57 years,
residing at Flat No.04,
OM Sai Dham, 1st Main,
4th Cross, Siddhivinayak Layout,
RMV 2nd Stage, Sanjay Nagar,
Bengaluru - 560094.
17. Sri. K Mohan Kumar
s/o Venkataraju
aged about 47 years,
residing at No.129,
SBI Colony, RC Road,
Thirupathi 517 501,
18. Sri. Srisha Hejmady
s/o HVN Acharya,
aged about 57 years,
residing at No.14, 6th Cross,
6th Main Road, Postal Colony,
2nd Stage, Sanjayanagar,
Bengaluru -560094.
19. Sri. Nandakishore
s/o Late Tukaram Rao,
aged about 59 years,
esiding at No.150, 2nd Cross,
Central Excise Layout,
Bhoopasandra,
Bengaluru - 560094.
20. Smt. Vandana Kadam
w/o Nandakishore
6 O.S.No.3152/2003
aged about 54 years,
residing at No.150, 2nd Cross,
Central Excise Layout,
Bhoopasandra,
Bengaluru - 560094.
21. Sri. N. Rana Pratap Reddy
s/o N Ramachandra Reddy,
aged about 55 years,
residing at Principal Quarters,
Reva Institute of Technology and
Management Campus,
Kattigenahalli, Yelahanka,
Bengaluru - 560064
22. Anusha P
d/o Umapathi Raju
aged about 24 years,
residing at No.77/3,
between 17 and 18th Cross,
6th Main ,Malleshwaram,
Bengaluru - 560 055.
[D.2 & 3 by Sri. H.S.D, Advocate,
D.4 & 9 by Sri. M.S.V, Advocate,
D.5 by Sri. D.R.B, Advocate,
D.6 by Sri. B.K.M, Advocate,
D.7 & 8 by Sri. A.S.P, Advocate,
D.10 by Sri. R.R.M, Advocate,
D.11, 12, 13, 14, 15, 16, 18, 19,
20, 21, 22 by Sri. P.U.T., Advocate,
D.1 placed ex-parte,
D.17 - Absent.]
*****
7 O.S.No.3152/2003
Date of Institution of Suit 02-05-2003
Nature of Suit Permanent Injunction,
Mandatory Injunction and
Declaration
Date of Commencement 01-12-2010
of Recording of evidence
Date of which Judgment 25-04-2026
was pronounced
Total Duration Year/s Month/s Day/s
22 11 23
(MAMTAZ)
XXXIX Additional City Civil &
Sessions Judge, Bengaluru City.
*****
JUDGMENT
This is a suit for permanent injunction, mandatory injunction and declaration with other consequential reliefs.
2. Brief facts of the plaintiff case is that, one Mujawar Syed Kareem was the absolute owner of the schedule property. He entered into an Agreement of Sale of the schedule property in favor of the plaintiff herein, and after his death his legal representatives 8 O.S.No.3152/2003 have executed agreement by receiving the sale consideration, when they failed to perform their part of the contract by executing Registered Sale Deed, the plaintiff was forced to file suit for specific performance of the agreement and obtained decree in O.S. No.16005/2000 on 07.01.2000. The plaintiff further submits that, the Tahashildar has issued survey sketch in respect of the schedule property showing the demarcation of the plaintiff's vendor's property with boundaries.
3. The plaintiff further submits that, he was put in physical possession of the suit property by his vendors on the date of agreement itself i.e., 14.06.1995 and the plaintiff had paid total sale consideration of Rs.3,50,000/- as full and final settlement, through cheque and cash, having received the total amount the L.Rs of the deceased vendors allowed the plaintiff to put up compound wall throughout the schedule property. The plaintiff further submits that, he has invested amount towards the development of the property and got decree, simultaneously by protecting the schedule property since the schedule property comes within the limit of corporation division No.100, Sanjaynagar. The plaintiff further submits that, the defendants are utter 9 O.S.No.3152/2003 strangers to the schedule property and are making false claim by illegal means and are threatening to demolish the compound wall put up by the plaintiff.
4. The plaintiff further submits that, the illegal and unlawful act of the defendants was brought to the notice of the jurisdictional Police by showing decree and injunction order in respect of the schedule property. But, the Police were insisting to got/obtain injunction order against the defendants particularly. The plaintiff further submits that, by investing life savings secured the schedule property, if the act of the defendants are not restrained by an order of permanent injunction the plaintiff will be put to lot of hardship and mental agony and injustice will be caused to the plaintiff. The plaintiff further submits that, he has got Court decree in respect of the schedule property. Made out prima-facie case and the balance of convenience lies in favor of the plaintiff to decree the suit.
5. It is further submitted that, the total extent in Sy.No.14 measures 4 acre 20 guntas situated Bhoopasandra Village, Kasaba Hobali, Bengaluru North, out of which land 30 guntas of land was given to BDA and the vendors of the plaintiff was granted 7 10 O.S.No.3152/2003 guntas of land in the same survey number as per grant in LRF IND 411/1987-88DT 17-02-1089 the said Mujawar Syed Kareem executed Agreement of Sale in favor of plaintiff upon his death decree for specific performance was obtained against his legal representatives in O.S No.16005/2000, and 07 guntas land was registered through Court in the name of plaintiff on 23-08-2005 and he has paid tax to the property. R.T.C and pahanies stands in the name of plaintiff and plaintiff's property has been demarcated in survey sketch, except the plaintiff none is having any right, title or interest over the property.
6. The plaintiff further submits that, on 21-12-1987 the said Mujawar Syed Kareem was not having right to alienate the land since he got 07 guntas of land only on 17-02-1989. Hence, subsequent act by the society executing Registered Sale Deed in favour of the defendant No.1-Sri. A.K.Mehta on 11-06-1992 who in turn sold the property in favour of one Smt. Amulya through Registered Sale Deed on 16-08-2002 are not void in the eye of Law. The defendant No.5 knowing well that, his Sale Deed has no sanity in the eye of law and also during the pendency of the suit and also injunction application, the plaintiff has hurriedly completed the construction work in order to 11 O.S.No.3152/2003 defeat the injunction application and the relief sought earlier become infelicitous. In this regard. it is necessary to seek the relief of mandatory injunction, directing the defendants to pull down the structure by way of mandatory injunction. Since the plaintiff has constructed house upon the property of plaintiff.
7. After receipt of the suit summons, the defendant No.2 to 16 and 18 to 22 have appeared through their respective counsels and defendant No.2, 3, 5, 8, 9 and 10 have filed their separate written statements. The defendant No.1 did not appeared before the Court and hence, he was placed ex-parte. The defendant No.17 is absent. Rest of the defendants have not filed any written statement inspite of giving sufficient opportunity to file the same.
8. In the written statement of defendant No.2, he had denied the pliant averments and contended that, the land in Survey No.14 of Boopasandra Village has been acquired by the Central Excise House Building Co-operative Society Ltd., and in turn they have formed sites in the said survey numbers along with adjacent land in Survey No.9, 12, 13, 14, 15, 17, 18, 19 and 33 and have formed layout after getting the lands converted from agricultural to residential 12 O.S.No.3152/2003 purpose and in turn the Central Excise House Building Co-operative Society Ltd., has allotted the Site bearing No.58 of Boopasandra Village, Kasaba Hobali, Bengaluru to this defendant and after receipt of the full sale consideration, the Central Excise House Building Co-operative Society Ltd., has executed a Registered Sale Deed in favour of this defendant on 25-05-1992, which document has been registered as document No.4025/92-93, Volume 4750 in Book-I, Pages 49-50 dated 17-07-1992 in the office of the Sub-Registrar, Bengaluru North Taluk, Bengaluru.
9. It is further submitted that, as the Purchaser's name has been written as R.Venkatasubramanian instead of R.Kothandapani, the Central Excise House Building Co-operative Society Ltd., has rectified the Purchaser's name in the above Sale Deed by virtue of a Registered Rectification Deed dated 21-01-1992 which document has been registered as Document No.7619/92-93, Volume 4830 in Book-I, Pages 76-78 dated 25-01-1993 in the Office of the Sub-Registrar, Bengaluru North Taluk, Bengaluru. By virtue of the above said Rectification Deed, Sri. R. Kothandapani has become the full and absolute owner of the Site bearing No.58 in Rajamahal Vilas II Stage (Boopasandra Village), Bengaluru. It is further 13 O.S.No.3152/2003 contended that, in pursuance of the said Sale Deed and the Rectification Deed, the said R. Kothandapani was put in possession of the Site bearing No.58 by the Central Excise House Building Co-operative Society Ltd. The khatha in respect of the above property also has been transferred in the name of the said R.Kothandapani as per the Khatha Certificate issued by the Bangalore Development Authority, Bengaluru vide its Ref. No.BDA/RO/N/CE/58/93/-94 dated 30-07-1993.
10. It is further submitted that, after the purchase of the said site, he has dug up a borewell by investing huge amount and he has also put-up a compound wall. Subsequently, property has been included under the purview of the Bengaluru Mahanagara Palike and accordingly, the Bengaluru Mahanagara Palike has transferred the khaatha in the name of Sri.R.Kothandapani vide Certificate bearing No.BA/Wan...100/KTR308/2002-03 dated 01-08-2002 issued by the Bengaluru Mahanagar Palike, Sanjay Nagar Range, Bengaluru and he is paying taxes in respect of the above property and thereby, he has been exercising all rights of ownership of the said property.
14 O.S.No.3152/200311. It is further submitted that, the suit schedule property is not at all in existence and as stated supra, this entire land had been acquired by the Central Excise House Building Co-operative Society Ltd., and the Site bearing No.58 has been allotted to one Sri.Kothandapani and as such, the question of the plaintiff being the owner and is in possession of the suit schedule property does not arise. In order to harass this defendant and to extract money from this defendant, the plaintiff has come forward with the present suit with ulterior motives. It is further submitted that, he plaintiff herein is not at all the owner of the schedule property and he is not at all in possession of the property and as such, the suit has got to be dismissed in limine. Further, he is not at all a necessary and proper party to this suit and at no point of time, this defendant has interfered with the plaintiff and as such, the suit has got to be dismissed for misjoinder of parties. Further, during the year 1995, some unscrupulous elements had interfered with the peaceful possession and enjoyment of this defendant in respect of his property for which this defendant herein has lodged a complaint with the jurisdictional Police on 09-10-1995. Hence, prays to dismiss the suit.
15 O.S.No.3152/200312. In the written statement of defendant No.3, he had denied the pliant averments and contended that, the land in Survey No.14 of Boopasandra Village has been acquired by the Central Excise House Building Co-operative Society Limited and in turn they have formed sites in the said survey numbers along with adjacent land in Survey No.9, 12, 13, 14, 15, 17, 18, 19 and 33 and have formed layout after getting the lands converted from agricultural to residential purpose and in turn the Central Excise House Building Co-operative Society Limited has allotted the Site bearing No.59 formed in survey No.14 of Boopasandra Village, Kasaba Hobali, Bengaluru, to this defendant and after receipt of the full sale consideration, the Central Excise House Building Co- operative Society Limited has executed a Registered Sale Deed in favour of this defendant on 27-05-1992, which document has been registered as Document No.1059/92-93, Volume: 4750 in Book-1, Pages: 75- 76, dated 18-07-1992 in the Office of the Sub- Registrar, Bengaluru North Taluk, Bengaluru.
13. It is further submitted that, this defendant has sold the above property to one Smt. K.Girija through a Registered Deed of Sale dated 31-08-2001 which 16 O.S.No.3152/2003 Document has been registered as No.7719/2001- 2002, In Book-1, C.D No.46, dated 01-09-2001 in the office of the Sub-Registrar, Bengaluru North Taluk. Further, in pursuance of the said document the khatha in respect of the above property also stands in the name of the said Smt. K.Girija as per the Khatha Certificate issued by the Bengaluru Mahanagara Palike, Bengaluru, vide it Certificate No.DA/002PR302/02-03 dated 22-08-2002. It is further submitted that, subsequent to Sale Deed dated 31-08-2001 the said Smt. K.Girija has been in possession and enjoyment of the said property, she has been paying taxes in respect of the above property and thereby, she has been exercising all rights of ownership over the said property. Further, in pursuance of the said document this defendant has lost interest, claim over the said property and as such this defective is not at all necessary and proper person for the said suit.
14. It is further submitted that, the suit schedule property is not at all in existence and as stated supra, this entire land had been acquired by the Central Excise House Building Co-operative Society Limited and the Site bearing No.59 has been allotted to one Smt. K.Girija and as such, the question of the plaintiff 17 O.S.No.3152/2003 being the owner and is in possession of the suit schedule property does not arise. It is further submitted that, the plaintiff is not at all the owner of the scheduled property and he is not at all in possession of the property and as such, the suit has got to be dismissed in limine. Further, he is not at all necessary and proper party to this suit and at no point of time, this defendant has interfered with the plaintiff and as such, the suit has got to be dismissed for misjoinder of parties. Hence, prays to dismiss the suit.
15. In the written statement of defendant No.5, she had denied the pliant averments and contended that, the Central Excise House Building Co-operative Society Ltd., (it is hereinafter will be called as "the said Society") formed a residential layout in the lands bearing Survey No.9, 12, 13, 14, 15, 17, 18, 19 and 33 of Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru after purchasing the lands from the respective land owners and getting the layout plan approved by the Bangalore Development Authority. One of the lands in which the said Society formed the residential layout was land bearing Survey No.14 of Bhoopasandra Village measuring 16 guntas and bounded on the East by :
18 O.S.No.3152/2003Private Land, West by: Shri Syed Gaffar's land; North by : Shri Syed Yaseen's land and South by : Shri Syed Rasool's land. The said land was purchased by the said Society from its previous owner, Sri. Mujawar Syed Kareem S/o Late Sri. Syed Ahmed Saheb under a Sale Deed dated 21-12-1987 registered as document No.3647/ 87-88, Pages 111 to 122, Volume 4040 of Book I on 21-12-1987 in the Office of the Sub- Registrar, Bengaluru North Taluk, Bengaluru. After forming the residential layout in the said lands and getting approval for the layout plan from the Bangalore Development Authority, the said Society allotted Site bearing No.50 formed in it measuring East to West 62.75 feet, North to South 50.5 feet and in all 3233 square feet (it is hereinafter will be called "the said site") to the defendant No.1 and executed a Sale Deed dated 11-06-1992 in his favour, which was registered as document No.1602/92-93, Pages 49 and 50, Volume: 4762 of Book-I on 17-06-1992 in the Office of the Sub-Registrar, Bengaluru North Taluk, Bengaluru.
16. It is further submitted that, this defendant No.5 has purchased the said site from the defendant No.1 under a Sale Deed dated 16-08-2002 registered as document No.9557/02-03 on 16-08-2002 in the Office 19 O.S.No.3152/2003 of the Sub-Registrar, Bengaluru North Taluk, Bengaluru. This defendant No.5 subsequently constructed a house in the said site by borrowing money from ICICI Bank Ltd., after getting the building plan approved by the Bengaluru Mahanagara Palike.
This defendant No.5 has mortgaged the said site No.50 and the house built in it (hereinafter jointly called as "the said property") to ICICI Bank Ltd., for the loan availed from them by depositing with them the originals of documents of title and other documents relating to the same. The khaatha of the said property is standing in the name of this defendant No.5 in the books of the Bengaluru Mahanagara Palike. He has also been paying property tax to the Bengaluru Mahanagara Palike in respect of the said property. Thereby, he has been in possession and enjoyment of the said property and his family members are residing in it.
17. It is further submitted that, after selling of the said land bearing Survey No.14 of Boopasandra Village to the said society under a Registered Sale Deed dated 21-12-1987, there was no land left in the ownership of Shri. Mujawar Syed Kareem in Survey No.14 of Bhoopasandra Village to enter into an Agreement of Sale dated 14-06-1995 with the plaintiff 20 O.S.No.3152/2003 herein, as falsely claimed by the plaintiff. In fact, the entire extent of 4 acres and 20 guntas of land in Survey No.14 of Bhoopasandra Village was notified for acquisition by the Bangalore Development Authority for formation of "Further Extension of Rajamahal Vilas II Stage (Gokul II Stage) Layout" vide Preliminary Notification No.A3 PR(S)/SLAO/BDA/77-78 published in the Karnataka Gazette dated 19-01-1978 and Final Notification No.HUD/310/MNX/82 dated 28- 12-1982. Subsequently, an extent of 3 acres and 30 guntas of land in the said Survey No.14 was withdrawn from acquisition vide Notification No.HUD/114/MNX/83 dated 30-10-1984, which the said society subsequently purchased from the respective owners under various Registered Sale Deeds. In the said three notifications the names of all the owners of the entire extent of land measuring 4 acres and 20 guntas of land have been mentioned which clearly shows that there was no land left with the Government to allot 7 guntas of it to the said Sri. Mujawar Syed Kareem in the year 1989, as falsely claimed by the plaintiff. The Judgment and Decree dated 07-01-2003 passed in O.S No.16005/2000 passed by the Learned XXVIII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru (CCH-29), is not 21 O.S.No.3152/2003 binding on either this defendant No.5 or the defendant No.1 from whom the defendant No.5 purchased the said Site No.50, as both of them were not parties to the said suit. The said suit appears to be a collusive one between the plaintiff herein and the defendants in the said Suit.
18. It is further submitted that, the schedule property has never been in existence at any point of time and it is an imaginary one. Even if it is assumed for the sake of argument without admitting that it was in existence, then also the plaintiff has no right over the said Site No.50 owned by this defendant No.5 as it is not formed in any portion of the schedule property. The major portion of the said Site No.50 is situated in Survey No.18 of Bhoopasandra Village and not in Survey No.14 over a portion which only the plaintiff is claiming right in the present suit. It is further submitted that, the said society was in possession and enjoyment of the said Site No.50 until 11-06-1992 on which day it sold it to the defendant No.1 herein under a Registered Sale Deed. The defendant No.1 was in possession and enjoyment of the said site from 11-06-1992 to 16-08-2002 on which day he sold the said site to the defendant No.5 under a Registered Sale Deed. The defendant No.1 has 22 O.S.No.3152/2003 been in possession and enjoyment of the said site since 16-08-2002. The plaintiff was never in possession and enjoyment of the said site at any point of time. In view of this, the plaintiff has no right to seek injunction either against this defendant No.5 or against defendant No.1.
19. It is further submitted that, the plaintiff had originally sought relief of permanent prohibitory injunction restraining the defendants from interfering with his alleged peaceful possession and enjoyment of the schedule property. Now, in the Amended Plaint, the Plaintiff is seeking the relief of mandatory injunction against this defendant No.5 to pull down the structure/building put by this defendant No.5 in the said Site No.50. The plaintiff has altered the very nature of the suit by admitting possession of the Site No.50 by this defendant No.5 and seeking relief of mandatory injunction against him to pull down the structure/building built in it by this defendant No.5. The reliefs claimed by the plaintiff are contradictory to each other. As the plaintiff has at no time been in possession and enjoyment of the said Site No.50 and it has been in continuous possession and enjoyment of the defendant No.5 and his predecessors-in- interest earlier, the suit in the present form is not 23 O.S.No.3152/2003 maintainable in law. Further, the plaintiff has not paid proper Court fee on the new reliefs sought by him in the Amended Plaint. The suit is liable to be dismissed as it is not properly valued and for non-payment of proper Court fee. Hence, the question of non- payment of proper Court fee has to be tried as a preliminary issue and also the reliefs sought in the Amended Plaint, are barred by limitation. Hence, prays to dismiss the suit.
20. In the written statement of defendant No.8, he had denied the pliant averments and contended that, the defendant No.7 are not keeping well and suffering from aliments, and in order to meet medical expenses and this defendant and the defendant No.7 are need of funds for medical expenses and other family legal necessities have sold site bearing No.58 and 59 in favor of 9th defendant herein and conveyed the said site No.58 and 59 in favor of 9 th defendant herein through a registered deed of sale dated 10.02.2002 and 10.02.2012. In pursuance of the said sale the 9 th defendant was put in possession and enjoyment of site No.58 and 59 of Boopasandra village, Bengaluru North taluk. The documents pertaining to the said sites also handed over to the 9th defendant. That the 24 O.S.No.3152/2003 plaintiff has not come forwards with a clean hands and he has file the above suit with an oblique motive ad requisite court fee has not paid on the plaint. In order to harass this defendant the plaintiff has filed the suit against the defendant with an ulterior motive. At no point of time the plaintiff herein has lodged a complaint with a jurisdictional police against this defendant much less on 09.10.1995. It is further submitted that, the suit is barred by limitation as such prays to dismiss the suit.
21. In the written statement of defendant No.9, he had denied the pliant averments and contended that, the above suit filed by the plaintiff seeking judgment and decree to declare that the plaintiff is the absolute owner of suit schedule property, permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property is neither maintainable in law nor on facts and same is liable to be dismissed in limine. Infact the above suit filed by the plaintiff is devoid of merits and the same is filed by the plaintiff with a malafide intention to extort money from this defendant by harassing him. Interalia the above suit filed by the plaintiff is barred by limitation and the above suit filed by the plaintiff without seeking 25 O.S.No.3152/2003 efficacious remedy is liable to be dismissed at threshold. It is to be noted that the above suit filed by the plaintiff by suppressing the material facts, is nothing short of abuse of process of law and therefore, the above suit filed by the plaintiff is liable to be dismissed with exemplary costs and also to award compensatory costs for harassing this defendant No.9.
22. It is further submitted that, it is pertinent to note that the land bearing Sy.No.14, measuring 3 Acres 30 Guntas, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, was withdrawn from the final notification of land acquisition by Notification dated 15-11-1984 issued by Under Secretary to Government, Department of Housing and Development. Thereafter, the Central Excise House Building Co-operative Society Ltd., has acquired an extent of 16 guntas of land in said Sy.No.14, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, under Sale Deed dated 21-12-1987, bearing registered document No.3647/1987-88, stored in Book-I, Volume: 4040, Pages: 111 to 122, registered in the office of Sub- Registrar, Bengaluru North Taluk, Bengaluru, from its 26 O.S.No.3152/2003 erstwhile owner- Sri. Mujawar Syed Kareem S/o. Late. Sri. Syed Ahmed Saheb.
23. It is further submitted that, in addition to aforesaid land bearing Sy.No.14 of Bhoopsasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, the said Central Excise House Building Co- opeartive Society Ltd., had also acquired lands in Sy.No.9, 12, 13, 15, 17, 18, 19 and 33, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru as well. In pursuance of acquiring property bearing Sy.No.9, 12, 13, 14, 15, 17, 18, 19 and 33 situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Benglauru, the said Central Excise House Building Co-operative Society Ltd., has obtained a sanctioned layout plan from the BDA vide its Order bearing No:
BDA/Commn.TPM/264/88-89 dated 18-07-1988 and formed a layout.
24. It is further submitted that, pursuant to forming of layout, the said Central Excise House Building Co- operative Society Ltd., has sold property bearing Site No.58, measuring East to West 51.5 feet and North to South 44 feet, totally measuring 2266 square feer or 251.77 square yard, formed in Central Excise HBCS 27 O.S.No.3152/2003 Layout, Bhoopsandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, presently coming under RMV II Stage, Bengaluru to the Defendant No.2 Sri. Venkatasubramanian under Sale Deed dated 25-05-1992, However, the said Central Excise House Building Co-operative Society Ltd., instead of selling the aforesaid property to the defendant No.8 had sold it to the defendant No.2 and hence, the same was rectified by way of Rectification Deed dated 21-01- 1993, bearing registered document No.7619/1992-93, stored in Book-I, Volume: 4830, Page: 76, registered in the office of Sub-Registrar, Bengaluru North Taluk, Bengaluru, on 25-01-1993.
25. It is further submitted that, that the Central Excise House Building Co-operative Society Ltd., while executing Sale Deed dated 25-05-1992 in respect of aforesaid property bearing Municipal No.58, formed in Central Excise House Building Co-operative Society Layout, situated at RMV II Stage (Bhoopasandra Village), Bengaluru North Taluk, Bengaluru, had committed error regarding measurement. Hence, the same was rectified by way of Rectification Deed dated 05-01-2012. Thereafter, the defendant No.2 and 8 have sold property bearing Municipal No.58, formed 28 O.S.No.3152/2003 in Central Excise House Building Co-operative Society Layout, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, presently situated at RMV II Stage, Bhoopasandra, Bengaluru to this defendant No.9 under Sale Deed dated 10-02-2012. However, while executing the Sale Deed dated 10-02-2012 a mistake was crept regarding measurement and hence, the same was rectified by executing a Rectification Deed dated 05-07-2012.
26. It is further submitted that, thus, the defendant No.9 herein is the absolute owner of property bearing Site No.58, measuring East to West 44 feet and North to South 51.5 feet, formed in Central Excise House Building Co-operative Society Layout, situated at RMV II Stage (Bhoopasandra), Bengaluru North Taluk, Bengaluru and has paid up-to-date tax in respect of aforesaid property. Further, the said property is also free from all encumbrance, charges etc., as well. It is further submitted that the said Central Excise House Building Co-operative Society Ltd., have sold property bearing Municipal No.59, measuring East to West 40 feet and North to South 50.5 feet, admeasuring 2020 square feet, formed in the Central Excise House 29 O.S.No.3152/2003 Building Co-operative Society Layout, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, presently situated at RMV II Stage, Bengaluru to the defendant No.3- Sri.R.Bhaskaran, under Sale Deed dated 27-05-1992. Thereafter the said defendant No.3 inturn sold the aforesaid property to the defendant No.7-Smt. K.Girija under Sale Deed dated 31-08-2001.
27. It is further submitted that, pursuant to aforesaid, the defendant No.7-Smt. K.Girija being the absolute owner of property bearing Municipal No.59, measuring East to West 40 feet and North to South 50.5 feet, admeasuring 2020 square feet, formed in the Central Excise House Building Co-operative Society Layout, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, presently situated at RMV II Stage, Bhoopasandra, Bengaluru, has sold the same to this defendant No.9 under Sale deed dated 10-02-2012, bearing registered document No.GAN-1-02723-2011-12, stored in C.D.No.GAND134, registered in the office of Senior Sub-Registrar, Gandhinagar, Bengaluru on 13/02/2012. Thus, this defendant No.9 herein is also the absolute owner of property bearing Municipal No.59, formed in Central Excise House Building Co-
30 O.S.No.3152/2003operative Society Layout, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, presently situated at RMV II Stage, Bhoopasandra, Bengaluru has paid up-to-date tax in respect of same.
28. It is further submitted that, this defendant No.9 herein is the absolute owner of aforesaid property bearing Municipal No.58, formed in Central Excise House Building Co-operative Society Layout, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, has paid up-to-date tax in respect of same and the khaatha in respect of said property also stands in the name of defendant No.9 as well. Further, the said property bearing Site No.59 is also free from all encumbrance as well. It is further submitted that, it is pertinent to note that in pursuance to purchasing aforementioned property bearing Site No.58 and 59, formed in Central Excise Layout, situated at RMV II Stage (Bhoopasandra Village), Bengaluru, the defendant No.9 herein made an application to the concerned BBMP seeking for amalgamation of khaatha. Thereafter, the concerned BBMP has amalgamated the aforesaid sites and assessed the tax in respect of same by issuing Special Notice dated 05-04-2012. Pursuant to 31 O.S.No.3152/2003 aforesaid the Assistant Revenue Officer, BBMP has issued the amalgamated khaatha in respect of aforesaid property and the defendant No.9 herein has also paid up-to-date tax in respect of same as well. Thus, the defendant No.9 herein is the absolute owner of property bearing Site No.58 and 59, bearing PID No.100-768-58/59, formed in Centra Excise HBC Layout, RMV II Stage, Bhoopasandra, Bengaluru, has also obtained sanctioned building plan from the competent authority and has constructed the residential building on the same as well.
29. It is further submitted that, when this being the case the plaintiff herein has filed the above frivolous suit with a malafide intention to squat the property belonging to this defendant. It is also pertinent to note that, Sri. Mujawar Syed Kareem extent of 16 guntas, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, has sold the same to Central Excise House Building Co- operative Society Ltd., under the registered Sale Deed dated 21-12-1987. Therefore, the said Sri.Mujawar Syed Kareem had no title to convey property bearing Sy.No.14, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru. Such being the case the averment of the 32 O.S.No.3152/2003 plaintiff at para No.3 of the plaint that one Sri. Mujawar Syed Kareem was the absolute owner of the schedule property is a vague and bald averment and same is liable to be struck down.
30. It is further submitted that, since Sri. Mujawar Syed Kareem had already sold the property in favour of the Central Excise House Building Co-operative Society Ltd., which has not been challenged by either by said Sri. Mujawar Syed Kareem or his legal heirs. Therefore, his legal heirs had no right to enter into any Agreement of Sale with the prospective purchaser. Hence, the plaintiff herein in collusion with the legal heirs of the Sri. Mujawar Syed Kareem have committed criminal conspiracy in fabrication of document to jeoparadise the right of this defendant over his property bearing Site No.58 and 59 ad- measuring 4896 square feet situated at RMV II Stage, Bhoopasandra, Bengaluru North Taluk, Bengaluru. This being the case the averment of the plaintiff at para No.3 of the plaint that when the legal heirs of Sri. Mujawar Syed Kareem failed to perform their part of the contract by executing registered Sale Deed, the plaintiff was forced to file suit for specific performance of the agreement and obtained judgment and decree in O.S No.16005/2000 33 O.S.No.3152/2003 on 07-01-2003 is liable to be refuted. As this defendant herein is not a party to the said Suit and the Judgment and Decree passed in O.S No.16005/2000 cannot be binding on this defendant.
31. It is further submitted that, the plaintiff herein with a ulterior motive to claim title over the property belonging to this defendant has fabricated the documents and played fraud on this Court to obtain the judgment and decree in O.S No.16005/2000. It is pertinent to note that, the plaintiff herein who is not a pre-emptive purchaser and the legal heirs of Sri.Mujawar Syed Kareem had no title to convey the same in favour of the plaintiff, further the plaintiff herein purposefully did not implead this defendant in the said case to obtain fraudulent decree. It is further submitted that, this defendant has been in possession of the said site bearing No.58 and 59, formed in Central Excise House Building Co-operative Society Layout, RMV II Stage, Bhoopasandra, Bengaluru North Taluk, Bengaluru, ever since purchasing the same and his predecessor in title were in possession of the said sites ever since they had purchased it from Central Excise House Building Co- operative Society Ltd. Infact neither the defendant nor the predecessor in title of this defendant have 34 O.S.No.3152/2003 received any notice from the Surveyor regarding the measurement. When the facts stands thus the averment of the plaintiff at para No.4 of the plaint that the Tahsildar has issued survey sketch in respect of the schedule property showing the demarcation of the plaintiff's vendor's property with boundaries is a concocted averment of the plaintiff for the purpose of this case and the survey sketch produced by the plaintiff is fabricated for the purpose of this case.
32. It is further submitted that, this defendant No.9 who has been in physical possession of property bearing Site No.58 and 59, formed in Central Excise House Building Co-operative Society Layout, RMV II Stage, Bhoopasandra, over the same as well. Therefore, the averment of the plaintiff at para No.5 of Bengaluru North Taluk, Bengaluru, has also built a residential building the plaint that he was put in physical possession of the suit property by his vendors on the date of agreement itself i.e., 14-06-1995 is absolutely false. It is to be noted that the plaintiff herein who is the author of fabricated Agreement of Sale dated 14-06-1995 is making hectic effort to claim the title over the property belonging to this defendant. Infact the further averment of the plaintiff at para No.5 of the plaint that the plaintiff 35 O.S.No.3152/2003 paid total sale consideration of Rs.2,50,000/- as full and final settlement through cheque and cash having received the total amount the L.Rs of the deceased vendors alleged the plaintiff to put-up compound wall throughout the schedule property is absolutely false and frivolous. It is pertinent to note that, Sri. Mujawar Syed Kareem had already conveyed the title to Central Excise House Building Co-operative Society Ltd., therefore neither said Mujawar Syed Kareem nor his successors were left with any title to convey the same to the plaintiff.
33. This defendant further contended that, the plaintiff herein who doesn't have any title is not in possession of the suit schedule property and therefore, the averment of the plaintiffs at para No.6 of the plaint that he has invested huge amount towards the development of the property and got decree, simultaneously by protecting the schedule property comes within the limit of Corporation Division No.100, Sanjaynagar, has probative value as the plaintiff herein has not produced any document to corroborate his possession. Hence the above suit without seeking efficacious remedy is liable to be dismissed at the threshold. It is tangible from the records furnished by this defendant that he has been 36 O.S.No.3152/2003 in possession of property bearing Site No.58 and 59, formed in Central Excise House Building Co-operative Society Layout, RMV II Stage, Bhoopasandra, Bengaluru North Taluk, Bengaluru. Such being the case the averment of the plaintiff at para No.6 of the plaint that the defendants are utter strangers to the schedule property and are making false claim by illegal means and are threatening to demolish the compound wall put up by the plaintiff is incorrect and misleading averment.
34. It is further submitted that, since the plaintiff herein do not have any title and this defendant is not a party to the O.S No.16005/2000 and therefore, the averment of the plaintiff at para No.7 of the plaint that the illegal and unlawful act of the defendants was brought to the notice of the jurisdictional Police by showing decree and injunction order in respect of schedule property is hereby denied as false. The plaintiff herein who is not in possession of the suit schedule property and also being stranger to this defendant cannot claim injunction against this defendant who has been lawful owner and in peaceful possession of the property belonging to him. Therefore the contention of the plaintiff at para No.7 of the plaint that the Police were insisting to 37 O.S.No.3152/2003 get/obtain injunction order against the defendants particularly is false and frivolous and the plaintiff herein. This defendant herein who has purchased the property bearing Site No.58 and 59, formed in Central Excise House Building Co-operative Society Layout, RMV II Stage, Bhoopasandra, Bengaluru North Taluk, Bengaluru has raised construction over the same by availing loan from the bank. Infact the plaintiff herein who has been claiming title in respect of property bearing Sy.No.14, of Bhoopasandra Village, Kasaba Hobali, Bengaluru Taluk, has colluded with the legal heirs of late Muzawar Syed Kareem has fabricated the Sale Deed and has obtained the decree by fraud. Therefore, the averment of the plaintiff at para No.8 of the plaint that by investing life savings secured the schedule property, if the act of the defendants are not restrained by an order of permanent injunction the plaintiffs will be put to lot hardship and mental agony and injustice will be caused to the plaintiff is a fallacious averment.
35. It is further submitted that, the averment of the plaintiff at para No.9 of the plaint that he has got Court decree in respect of the schedule property has no legs to stand, as the same is obtained by fraud and collusion. Further, since this defendant herein is 38 O.S.No.3152/2003 not a party to the said O.S No.16005/2000 and therefore, the decree passed in the said suit cannot operate as right in rem. Infact the plaintiff herein who has no title to the suit schedule property has no balance of convenience in his favour. Hence, the further averment of the plaintiff at para No.9 of the plaint that plaintiff made out prima-facie case and the balance of convenience in favour of the plaintiff to decree the suit is liable to be struck down. It is further submitted that, the averment of the plaintiff at para No.9(a) of the plaint that the total extent in Sy.No.14 measures 4 Acres 20 Guntas situated Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, out of which 30 guntas of land was given to BDA and the further averment that, Sri. Mujawar Syed Kareem was granted with 7 guntas of land in the same Survey Number as per grant in LRF IND 411/1987-88DT 17/02/1989 is a matter of record. Whereas the averment of the plaintiff at para No.9(a) of the plaint that the said Mujawar Syed Kareem executed Agreement of Sale in favour of plaintiff is hereby denied as false. Since it is the specific contention of this defendant that, the Mujawar Syed Kareem after having conveyed the property bearing Sy.No.14 situated at Bhoopasandra 39 O.S.No.3152/2003 Village, Kasaba Hobali, presently known as RMV 2nd Stage, Bengaluru North Taluk, Bengaluru, in favour of the Central Excise House Building Co-operative Society Ltd., such being the case the averment of the plaintiff at para No.9(a) of the plaint that upon the death of Mujawar Syed Kareem the decree for specific performance was obtained against his legal representatives in O.S No.16005/2000 and 07 guntas of land was registered through Court in the name of plaintiff on 23-08-2005 and he has paid tax to the property, RTC and pahanies stands in the name of the plaintiff and plaintiff's property has been demarcated in survey sketch, except the plaintiff none is having any right, title or interest over the property has no probative value as the same is a collusive decree. It is not out of the context to mention that the decree obtained by the plaintiff by playing fraud cannot water down the title of this defendant to property bearing Site No.58 and 59, formed in Central Excise House Building Co-operative Society Layout, RMV II Stage, Bhoopasandra, Bengaluru North Taluk, Bengaluru.
36. It is further submitted that, it is well settled law that the transfer of property by unauthorised person who subsequently acquires interest in property 40 O.S.No.3152/2003 ensures to the benefit of subsequent purchaser. Therefore, the averment of the Plaintiff at para No.9(b) of plaint that on 21-12-1987 the said Mujawar Syed Kareem was not having right to alienate the land since he got 07 guntas of land only on 17-02-1989 is defiant of logic and repugnant to settled law. However, the further averment of the plaintiff that the subsequent act by the society executing Registered Sale Deed in favour of the defendant No.1-Sri. A.K.Metha on 11-06-1992 who in turn sold the property in favour of one Amulya through Registered Sale Deed on 16-08-2002, are not void in the eye of law fortifies the contention of this defendant. Whereas, the further averment of the plaintiff at para No.9(b) that the defendant No.5 knowing well that, his Sale Deed has no sanity in the eye of law and also during the pendency of the suit and also injunction application, the plaintiff has hurriedly completed the construction work in order to defeat the injunction application, and the relief sought earlier become infelicitous is hereby denied as false.
37. It is further submitted that, the above frivolous suit filed by the plaintiff herein without challenging the Sale Deed executed by the Sri. Mujawar Syed 41 O.S.No.3152/2003 Kareem in favour of the Central Excise House Building Co-operative Society Ltd., is not maintainable in law. Therefore mere seeking for mandatory injunction to pull down the structure without challenging the Sale Deed, is not the efficacious remedy available to the plaintiff and therefore, on this ground alone the suit of the plaintiff is liable to be dismissed. In furtherance to above the suit filed by the plaintiff is barred by limitation as the plaintiff herein is seeking declaration and recovery of possession after lapse of time. Admittedly the plaintiff herein who doesn't have title, is not in possession of the suit schedule property has sought for recovery of possession of same. When the facts stand thus, the averment of the plaintiff at para No.9(b) of the plaint that the plaintiff has constructed house upon the property of the plaintiff is defiant of logic and the same is hereby denied as false.
38. This defendant further contended that, since the said Mujawar Syed Kareem had already conveyed the title in respect of suit schedule property and therefore neither the said Mujawar Syed Kareem nor his legal heirs or G.P.A Holder had any right to convey the same. When this being the case the averment of the plaintiff at para No.9(c) of the plaint that the plaintiff traces his title to the suit schedule property as having 42 O.S.No.3152/2003 purchased through Court Commissioner vide registered document bearing No.BLN-1-10254/2005- 06 marked as exhibit in execution No.15080/2003 pursuant to the Judgment and Decree in O.S No.16005/2000, has no evidentiary value in the eye of law and same is liable to be deprecated by dismissing the above suit with exemplary costs. The further averment of the plaintiff at para No.9(c) that one Sri. Syed Mujawar Karim, through his G.P.A Holder, had entered into an agreement to sell the suit schedule property in with the of plaintiff after grant of occupancy rights in respect of suit schedule property in favour of Sri. Syed Mujawar Karim by the Land Tribunal, Bengaluru Taluk, in LRF - LND No.411/1987- 88 dated 22-08-1989 do not withstand judicial scrutiny and the same is hereby denied as false.
39. It is further submitted that, the Plaintiff herein who is well aware of the factum of Sale Deed executed in favour of the predecessor-in-title of this defendant and also it is pertinent to reiterate that this defendant is not a party to O.S No.16005/2000 or to the Execution No.15080/2003. Therefore, the further averment of the plaintiff at para No.9(c) of the plaint that the legality, validity or correctness of decree for specific performance in 16005/2000 and order in 43 O.S.No.3152/2003 Execution No.15080/2003 resulting in execution and Sale Deed by the Court Commissioner, is not called in question by any person and such judgment is judgment in rem and binds all in terms of Transfer of Property Act, has no sanctity. The averment of the plaintiff at para No.9(d) of the plaint that the application for grant of occupancy right was presented by Sri. Syed Mujawar Karim in July 1987 before the Land Tribunal, Bengaluru North Taluk, for occupancy rights were granted on 17-02-1989 and hence, prohibition of alienation existed for a period of 15 years from 17-02-1989, is a matter of record. The further averment of the plaintiff at para No.9(d) that the Sale Deed was executed in the name of the plaintiff in the year 2005, which was beyond the period of 15 years, after the date of sale through Court, plaintiff has paid taxes and has remained in lawful possession, the plaintiff got the property transferred in his name in the revenue records and the R.T.C and pahani stands in his name even till today is hereby denied as false.
40. It is further submitted that, the above suit filed by the plaintiff without challenging the Sale Deed of the predecessor of this defendant, is not maintainable. Therefore, the averment of the plaintiff 44 O.S.No.3152/2003 at para No.9(e) of the plaint that all the defendants claim to have acquired title from the Central Excise House Building Co-operatives Society Ltd., (CEHBCS) directly or indirectly is again a matter of record. However, the averment of the plaintiff at para No.9(e) of the plaint that the Central Excise House Building Co-operative Society has encroached the suit schedule property and illegality formed a layout on the suit schedule property and sold the sites on it to its members has no legs to stand as the Plaintiff's vendor had no title to convey the same. It is further submitted that, the averment of the plaintiff at para No.9(f) of the plaint that the revenue sketch obtained by the Central Excise House Building Co-operative Society Ltd., had formed an unauthorized layout on the suit schedule property is absolute myth. However the further averments are matter of record, however the averment of the plaintiff at para No.9(f) of the plaint that the purchase by the defendant No.3 and subsequent purchase by defendant No.7, knowing fully well that the fact that the said layout was an unauthorized layout makes the sale transaction not valid in the eye of law is a illusion of the plaintiff and the plaintiff herein who is seeking remedy in the guise of subsequent purchaser cannot succeed to title 45 O.S.No.3152/2003 better than what his vendor possess. Infact the averment of the plaintiff at para No.9(g) of the plaint is again a matter of record. However the averment of the plaintiff at para No.9(g) that both defendant No.2 and 8 have purchased the Site No.58 formed on the suit schedule property authorizedly by the defendant No.6 the CEHBS cannot be accepted.
41. It is further submitted that, the averment of the plaintiff at para No.9(h) that the defendant No.2 and 8 being alleged owners of Site No.58, during the pendency of this suit and in operation of the interim order, fearing an order cannot be accepted as the plaintiff's vendor, who had sold the property did not have title to the suit schedule property. Therefore, the averment of the plaintiff at para No.9(h), cannot water down the title of this defendant. In furtherance it is to be noted that, Sri. Mujawar Sved Kareem who has sold property bearing Sy.No.14, situated at Bhoopsandra Village presently known as RMV II Stage, Kasaba Hobali, Bengaluru North Taluk, Bengaluru, has not challenged the Sale Deed dated 21-12-1987 and above all the plaintiff herein who has purchased the suit schedule property despite knowing the fact that the suit schedule property has been sold to Central Excise House Building Co-operative Society 46 O.S.No.3152/2003 Ltd., doesn't entitle the plaintiff to any relief. Therefore, the averment of the plaintiff at para No.9(i) of the plaint that the defendant No.9 knowingly fully well about the pending litigation on the suit schedule property purchased site carved out of the suit schedule property ventured to mortgaged two sites i.e., Site No.58 and 59 with defendant No.10 and accordingly has raised construction on the said properties is hereby denied as false and the further averment that in this regard, it is necessary to direct the defendant No.9 by way of issue mandatory injunction to pull down the structures constructed and hand over the vacant possession to the plaintiff is defiant of logic and the plaintiff herein is who has approached this Court with soiled hand is liable to pay compensatory costs for filing above frivolous suit despite knowing the factum of not having title to the suit schedule property.
42. It is further submitted that, the defendant No.1 to 5, 7 and 8 herein were in possession of their respective sites which are carved out of Sy.No.9, 12, 13, 15, 17, 18, 19 and 33, situated at Bhoopasandra Village, Kasaba Hobali, Bengaluru North Taluk, Bengaluru and the plaintiff herein was at no point of time was in possession of the suit schedule property 47 O.S.No.3152/2003 and therefore, the cause of action shown at para No.10 are concocted for the purpose of filing this suit. Infact the plaintiff herein who is seeking relief of declaration and possession has failed to pay proper Court fees based on the guideline value of the property. Hence, the above suit is liable to be dismissed for not paying proper Court fees as well.
43. In the written statement of defendant No.10, he had denied the pliant averments and contended that, the defendant No.9 had availed the mortgage loan on 24-12-2012 for Rs.310/- lakhs (Rupees Three hundred and ten lakhs only) from the defendant No.10 Bank of Baroda (erstwhile Vijaya Bank). The defendant No.9 had created mortgage in respect of immovable properties bearing (Item No.A):-Municipal No.58, situated at the Central Excise House Building Co- Operative Society layout, RMV 2nd Stage, Bhoopasandra, Sanjaynagar, Bengaluru, now coming under BBMP Ward No.100, measuring East to West: 44 feet and North to South: 51.5 feet, totally measuring 2,266 square feet and (Item No.B):-
Municipal No.59, situated at the Central Excise House Building Co-Operative Society layout, RMV 2nd Stage, Bhoopasandra, Sanjaynagar, Bengaluru, now coming under BBMP Ward No.100, measuring East to West:48 O.S.No.3152/2003
40 feet and North to South: 5.05 feet, totally measuring 2,020 square feet as a security towards the repayment of the mortgage loan.
44. This defendant further contended that, the defendant No.9 had closed/discharged the aforesaid mortgage loan on 28-12-2013 by paying all his dues to the defendant No.10. It is further contended that, the aforesaid case filed by the plaintiff may be also dismissed against defendant No.10 as misjoinder of necessary parties. Since, the defendant No.10, is not a necessary party, the defendant No.10 is no way connected to the suit of plaintiff for granting relief/s sought by the plaintiff. It is further submitted that, regarding Paragraphs No.3 to 11, the averments and allegations made in the paragraphs, are not within the knowledge of defendant No.10. Further, the averments and allegations made in the paragraphs are hereby denied as false, vexatious and baseless against defendant No.10. The cause of action mentioned in the plaint is imaginary and the proper Court fees not paid by the plaintiff. Hence, prays to dismiss the suit.49 O.S.No.3152/2003
45. In support of the case of plaintiff, the plaintiff himself got examined as PW.1 and got marked documents at Ex.P.1 to 28.
46. In support of the case of defendants, defendant No.2 got examined himself as DW.1 and the Power of Attorney holder of the defendant No.5 got examined himself as DW.2 got marked documents at Ex.D1 to 14 and Ex.D.16 to 23. Ex.D15 marked in the cross-
examination of PW.1 through confrontation.
47. Heard the arguments.
48. On the above pleading of the parties, my predecessor in office has framed the following:-
ISSUES (1) Whether the plaintiff proves that, he is in lawful possession of the suit schedule property on the date of suit?
(2) Whether the plaintiff further proves that, the defendants are interfering with his possession of the suit schedule property?
(3) Whether the plaintiff is entitled to the injunction prayed for?50 O.S.No.3152/2003
(4) What Order or Decree?
ADDITIONAL ISSUES DATED 09-08-2006 (1) Whether the 5th defendant proves that, the suit schedule property is not in existence and it is fictitious property?
(2) Whether the 5th defendant proves that, the suit is not maintainable for non-
joinder of parties?
(3) Whether the 5th defendant proves that, the judgment and decree passed in O.S No.16005/2005 is not binding on him?
ADDITIONAL ISSUES DATED 14-02-2008 (1) Whether the plaintiff proves that, he is the absolute owner of the plaint schedule property?
(2) Whether the plaintiff proves that, the defendant No.5 during the pendency of the suit has put up construction in a 51 O.S.No.3152/2003 portion of the plaint schedule property as alleged?
(3) Whether the plaintiff proves that, he is entitled for the relief of declaration as sought?
(4) Whether the plaintiff is entitled for the relief of mandatory injunction as sought?
ADDITIONAL ISSUE DATED 22-12-2009 (1) Whether the 5th defendant proves that, the Court fee paid on the plaint is not sufficient?
ADDITIONAL ISSUE DATED 22-12-2009 (1) Whether the suit is barred by limitation and liable to be dismissed?
ADDITIONAL ISSUE DATED 25-10-2021 (1) Whether the defendant No.10 proves that, suit of plaintiff is barred by law?
(2) Whether the defendant No.10 proves that, suit of the plaintiff is bad for mis joinder of parties?
52 O.S.No.3152/200349. After hearing arguments and considering the oral and documentary evidence on record, my findings on the above issues are here under:
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Addl. Issue No.1
framed on 09-08-2006: Deleted on 26.08.2008
Addl. Issue No.2
framed on 09-08-2006: In the Negative
Addl. Issue No.3
framed on 09-08-2006: Deleted on 26.08.2008
Addl. Issue No.1
framed on 14-02-2008: In the Negative
Addl. Issue No.2
framed on 14-02-2008: In the Negative
Addl. Issue No.3
framed on 14-02-2008: In the Negative
Addl. Issue No.4
framed on 14-02-2008: In the Negative
Addl. Issue No.1
framed on 22-12-2009: Tried and ordered as
preliminary issue
Addl. Issue No.1
framed on 12-11-2013: In the Affirmative
Addl. Issue No.1
framed on 25-10-2021: In the Affirmative
53 O.S.No.3152/2003
Addl. Issue No.2
framed on 25-10-2021: In the Affirmative
Issue No.4 : As per final order
for the following:
REASONS
50. Issues Nos.1 to 3, Addl. Issue No.2 dated 09-08-2006 Addl. Issue No.1 to 4 dated 14-02- 2008, Addl. Issue dated 12.11.2013 Addl. Issue No.1 and 2 dated 25.10.2021: These issues are taken together for discussion, since they are interconnected with each other and so also they require common discussion.
51. I am of the opinion that, I need not repeat the contention raised by the plaintiff here also, since I have already narrated the inception of this judgment.
52. The plaintiff file present suit seeking permanent injunction, declaration and other consequential reliefs as against the defendants.
53. The plaintiff counsel vehemently argued that Sy.No.14 had total extent of a property measuring 4 acres 20 guntas situated at Boopassandra Village, 54 O.S.No.3152/2003 Kasaba hobali, Bengaluru North, out of which 30 guntas of land was acquired by BDA and the vendors of the plaintiff was granted 7 guntas of land in the same Survey No.14 and Mujawar Syed Kareem was the absolute owner of the plaint schedule property who entered into an Agreement of Sale of the schedule property in favour of the plaintiff on 14-6-1995 and the plaintiff was put in physical possession of the suit schedule property and after death of Mujawar Syed Kareem his legal representative have executed agreement by receiving the sale consideration and when they failed to perform their part of contract, the plaintiff was forced to file suit for specific performance of the agreement as O.S.No.16005/2000 and obtained decree on 07.01.2000. The specific performance was obtained as against the legal heirs of Mujawar Syed Karim after his death and 7 guntas of land was registered through court in favor of plaintiff on 23.08.2005 and he had paid the property tax to the property. The RTC and Pahani's stands in the name of the plaintiff.
54. The plaintiff's counsel further submitted that the Tahasildar had issued survey sketch in respect of the schedule property showing the demarcation of the 55 O.S.No.3152/2003 plaintiff's vendor's property with boundaries. The plaintiff had paid sale consideration of Rs.3,50,000/- as a full and final settlement through cheque and cash which was received by the LRs of the deceased vendor and allowed the plaintiff to put up compound wall throughout the schedule property.
55. The plaintiff counsel further submitted that plaintiff had invested the amount towards the development of the property. The defendants who are the strangers to the property without having right title interest are making false claim by illegal means and threatening to demolish the compound wall and the plaintiff had been to jurisdictional police to lodge the complaint and shown the decree which stands in his favour. But the police advised to approach Civil Court.
56. The plaintiff's counsel further submitted that on 21.12.1987, the said Mujawar Syed Kareem, not having any right to inherit the land, since he got the 7 guntas of land on 17.02.1989 and subsequent act by the society executing Registered Sale Deed in favour of the defendant No.1 on 11.06.1992, who in turn sold the property in favour of Amulya through Registered Sale Deed on 16.08.2002 are not void in the eye of 56 O.S.No.3152/2003 law and the defendant No.5 knowing well that his Sale Deed has no sanctity, during the pendency of the suit the defendant No.5 hurriedly completed the construction work in order to defeat the injunction application.
57. The plaintiff's counsel vehemently argued that the validity of the land tribunal grant in favour of the plaintiff's vendor cannot be questioned collaterally by the defendants. The judgment and decree passed in OS No.16005/2000 reached its finality. It was not challenged by anybody. The plaintiff filed Execution Petition No.15080/2003, and it was allowed and Sale Deed was registered through court on 23.08.2005. Thus plaintiff perfected his title over the plaint schedule property and the plaintiff is in lawful possession and enjoyment of the property as on the date of filing of the suit. All the persons are bound by the judgment and decree of the court.
58. The plaintiff counsel vehemently further argued that the plaintiff filed the present suit for injunction in the year 2003 restraining the defendant No.1 to 5 as they were disturbing the possession of the plaintiffs property by visiting near the plaintiff's property and 57 O.S.No.3152/2003 trying to create some problems. After which the plaintiff's possession of the plaint schedule property was dispossessed in the year 2007 i.e. after filing of the present suit which constrained the plaintiff to amend the prayer and pleadings in 2007 to the relief of declaration and mandatory injunction and the consequential relief.
59. The plaintiff's counsel further vehemently argued that with the pursuance to the lawful request of the plaintiff's vendor, the jurisdictional tahsildar conducted an official survey of the schedule property and prepared a survey sketch and report as per Ex.P5. Ex.P5. The said establishes that defendant No.6 housing society has illegally formed a layout by encroaching upon the plaintiff's land bearing Survey No.14 of Boopasandra Village, measuring 7 guntas. The said survey report being an official act performed by the statutory authority in discharge of the public duty, carries a presumption of correctness under Section 114(e) of the Indian Evidence Act and it has not been rebutted by the defendants by producing any legally acceptable material and defendants not questioned or challenged the Tahasildar's report till date. The acts of defendant No.6 in forming a layout 58 O.S.No.3152/2003 without lawful title, sanctioned conversion, approved layout plan, valid authority from the competent planning authorities are void ab initio and do not confer any right, title or interest in law. Any construction or alienation made pursuant to such illegal layout is non est in the eyes of law, and amounts to a continuing encroachment upon the plaintiff's property and further submitted that the defendant No.6 cannot claim any legal protection or equity and its illegal acts are liable to be restrained and removed at the instance of plaintiff.
60. The plaintiff's counsel further submitted that defendant No.6 does not possess any valid or legally recognizable title to the suit schedule property. The Sale Deed dated 12.12.1987 on which defendant No.6 places reliance is inherently vague, defective and legally unsustainable and the said document does not disclose how the alleged vendor Mujawar Syed Kareem acquired title to the land in Survey No.14 nor does it establish lawful ownership over the alleged extent of 7 guntas claimed therein. There is a complete absence of foundational title documents and the Sale Deed fails to trace title from any competent authority. The Sale Deed doesn't refer to 59 O.S.No.3152/2003 or enclose any conversion order, approval, or statutory permission. Evidencing conversion of agricultural land for residential or lay out purposes. In the absence of the proof of ownership, conversion or authority to alienate, the said Sale Deed is void ab initio, confers no right, title or interest in law and cannot form the basis for any lawful claim by defendant No.6 or anybody under him.
61. The plaintiff's counsel further submitted that in a belated attempt to fill the glaring gaps in their alleged title, the defendants at stage of evidence have produced and marked Ex.D13 purportedly to trace the title of defendant No.6 through the said Mujawar Syed Kareem. A bare perusal of Ex.D13 reveals that it is a BDA Award relating to de-notification in Survey No.14, measuring 4 acres 20 guntas and not a document conferring ownership upon Mujawar Syed Kareem. Significantly, page 4 of the Ex.D13 under the RTC particulars merely reflects the names of several cultivators mentioned in column number 12(2) indicating cultivation and not ownership. The document further refers to tenure of land and leads cultivators which by no stretch of law amounts to a grant or re-grant of land. It is submitted that BDA is not a competent authority to grant or re-grant land in 60 O.S.No.3152/2003 favour of cultivators and Ex.D13 does not confirm title on any individual, much less on Mujawar Syed Kareem. Further, the RTC relied upon by the defendants and marked as Ex.D15 pertains to some other cultivators and not to Mujawar Syed Kareem, clearly exposing the concocted and misleading nature of the defendants' claim. These documents, far from establishing title, conclusively demonstrate an artificial attempt to legitimate an otherwise illegal encroachment made by defendant No.6 and those claiming under it.
62. The plaintiff's counsel further submitted that defendant No.6 having no valid, lawful or marketable title in respect of the plaint schedule property could not have conveyed any right, title or interest to any subsequent purchasers claiming under it. The alleged purchase of the plaint schedule property by defendant No.6 is wholly illegal, void and without authority of law. The defendant No.6 has failed to produce any valid conversion order passed by the Deputy Commissioner, any proof of payment of conversion, fine, or any document evidencing compliance with the conditions of the conversion. A mere recital in sale deed referring to an alleged conversion appeal or an 61 O.S.No.3152/2003 order allowing such appeal does not amount to unlawful conversion in the absence of a statutory order under Section 95 Of the Karnataka Land Revenue Act, 1964. Consequently the plaint schedule property continued to retain its agricultural character in law and any layout, formation, alienation or sale of sites by defendant No.6 on the basis of such unsubstantiated claim of conversion is void ab initio.
63. The further plaintiff's counsel submitted that, written statements filed by defendant No.8, 9 and 10, when read as a whole, do not disclose any independent or legally sustainable title, but merely parrot and trace their alleged rights solely through defendant No.6, whose title itself has already been demonstrated to be defective, illegal and non- existent. The said defendants do not plead or produce any original grant, lawful conveyance, or revenue title in their favour, but rely entirely on derogative Sale Deeds, rectification deeds, khata, entries, tax benefits, mortgages, and bank transactions, all of which cannot confirm or cure title in the absence of a valid root of ownership. Their reliance on alleged BDA de-notification, rectification deeds and RTC extract is only means conceived, as none of the said documents 62 O.S.No.3152/2003 confer ownership nor do they override the final and binding judgment and decree dated 17.01.2003 passed in OS No.16005/2000 followed by Court executed Registered Sale Deed dated 23.08.2005 in favour of the plaintiff.
64. The plaintiff counsel further submitted that the evidence adduced by the defendants far from disproving the plaintiff's case, materially strengthens the plaintiff's claim and exposes the inherent illegality of the defendants' title and possession. In the cross- examination of DW1 and DW2, the defendants have made crucial admissions which go to the very root of the matter, and they failed to produce the Conversion order, proof of payment of conversion fine or any statutory authority enabling Defendant No.6 house building cooperative to purchase or develop agricultural land.
65. The plaintiff counsel further submitted that the evidence of defendant No.2 both in his affidavit filed by way of examination in chief and in cross- examination is self contradictory, inconsistent, and wholly unreliable thereby seriously undermining the defendant's claim. The defendant No.2 has taken 63 O.S.No.3152/2003 mutually destructive stand with respect to the title and possession.
66. The evidence of defendant No.5 suffers from similar and equally fatal contradictions rendering his testimony wholly unreliable.
67. The plaintiff counsel further submitted that the objection raised by defendant No.9 that the suit is liable to be dismissed for want of a specific prayer for possession is untenable, hyper technical and contrary to settled principles of law. At the time of institution of the suit, the plaintiff was in lawful and settled possession of the suit schedule property having been put in possession under the Agreement of Sale dated 14.06.1995, which possession stood subsequently perfected and confirmed by the decree for specific performance and court executed Registered Sale Deed dated 23.08.2005. As the relief of permanent injunction was the proper and appropriate relief at the stage, it was only on account of the illegal dispossession caused by the defendants during the pendency of the suit, that the plaintiff with the leave of this Court amended the plaint to seek declaration of title and mandatory injunction along with consequential reliefs.
64 O.S.No.3152/200368. Plaintiff further submitted that once the plaintiff's lawful title is declared, the doctrine that possession follows the title, squarely applies. Where a person establishes a better and lawful title, the law presumes possession to be with the true owner.
69. Plaintiff's counsel further submitted that the alleged chain of title set up by defendant No.2, 8 and 9 is wholly illegal void ab initio being founded upon on impermissible misuse of rectification deeds to effectuate substantive conveyances. The Sale Deed dated 25.05.1992 relied upon by the defendants admittedly stands registered in the name of defendant No.2 as the purchaser. Thereafter instead of executing a lawful conveyance, the rectification deed dated 21.01.1993 was executed purporting to substitute the purchaser's name from defendant No.2 to defendant No.8. It is settled law that rectification deed can be utilized only to correct the clerical or typographical errors and cannot be employed to substitute or change the very identity of the purchaser, which goes to the root of the transaction. Such substitution amounts to a fresh transfer of ownership, which can be effected only by a duly stamped and Registered Sale Deed. Consequently, 65 O.S.No.3152/2003 the rectification deed dated 21.01.1993 is void ab initio.
70. The plaintiff counsel further submitted that the defendants have executed another rectification deed dated 05.01.2012 purportedly to rectify the measurements of the alleged site. This subsequent rectification deed effected merely two decades after the original Sale Deed which clearly exposes a systematic attempt to manipulate and improve a defective title by altering material particulars of the property which again is impermissible in law.
71. The plaintiff's counsel further submitted that in view of pleadings, oral and documentary evidence on record and the settled principles of law, the plaintiff has conclusively established his lawful, perfected and indefeasible title to the plaint schedule property. The plaintiff was in lawful and settled possession since from 1995 onwards and the defendant illegally interfered with and dispossessed the plaintiff during the pendency of the suit. The defendant's case is vitiated by suppression of material facts, self contradictory pleadings, deliberate inaction despite if knowledge of the decree and impermissible collateral 66 O.S.No.3152/2003 attacks on settled rights amounting to a clear abuse of the process of the court.
72. The plaintiff's counsel further submitted that the objection that suit is not maintainable for want of specific prayer of possession is wholly untenable. It is a settled principle of law that where the plaintiff seeks declaration of title along with injunction and consequential relief and where dispossession is pleaded and proved, the court is fully empowered to grant effective and consequential relief including restoration of possession, without a separate formal prayer. Further plaintiff's counsel submitted that possession fall of the title and once title is declared in favour of the plaintiff, the defendants cannot resist the natural and legal consequences flowing thereon. The plaintiff is not seeking any relief beyond the pleadings, but only enforcement of rights already claimed and adjudicated.
73. Plaintiff's counsel further submitted that the objection raised by defendant No.9 alleging that the plaint suit is defective for not seeking cancellation of the sale deed dated 21.12.1987 relied upon by defendant No.6 is wholly untenable in law and stands conclusively answered by the authoritative reportable 67 O.S.No.3152/2003 judgment of the Hon'ble Supreme Court in Hussain Ahmad Choudhury and others v. Habibur Rahman (dead) through LRs and others in Civil Appeal No.5470/2025, where the Hon'ble Apex Court held that where a plaintiff establishes his title on the basis of the prior and valid instrument, it is not incumbent upon him to seek cancellation of a subsequent Sale Deed which is void ab initio and executed by persons having no saleable interest.
74. The Plaintiff counsel further submitted that the 1989 grant has remained unchallenged for over 3 decades. The decree in OS No.16005/2000 was unchallenged. Counsel further submitted that the plaintiff's oral and documentary evidence on record and settled principles of law establishes that plaintiff was in lawful and settled possession from 1995 onwards and the defendants illegally interfered with and dispossessed the plaintiff during the pendency of the suit without authority of law. The defendant's case vitiated by suppression of material facts, self contradictory pleadings, deliberate inaction despite knowledge of the decree, and impermissible collateral attacks on settled rights amounting to a clear abuse of the process of court.
68 O.S.No.3152/200375. The plaintiff's counsel further submitted that the title is the foundation of possession, that possession follows title, and that settled and vested rights cannot be reopened by indirect or collateral challenges. Once the plaintiff's title is declared, all consequential and ancillary reliefs necessarily follow, and their defendants' derivative and pendente lite claims are liable to be rejected in toto.
76. The plaintiff's counsel further submitted that the plaintiff was put in lawful possession of the plaint schedule property under the Agreement of Sale dated 14.06.1995 itself, which fact stands pleaded, proved, and judicially recognized in the decree for specific performance dated 07.01.2003, the subsequent execution of the registered Sale Deed through court in 2005 merely perfected the title and did not create possession afresh. The plaintiff's counsel further submitted that it is settled principle of law that where the plaintiff seeks declaration of title along with injunction and consequential relief and where dispossession is pleaded and proved, the court is fully empowered to grant effective and consequential relief including restoration of possession without a separate formal prayer.
69 O.S.No.3152/200377. The plaintiff's counsel further submitted the plaintiff herein is a complete stranger to the Sale Deed dated 21.12.1987, which was executed without any valid title and is void ab initio. The plaintiff's title flows from a statutory land grant, a decree for specific performance and a court executed Registered Sale Deed, all of which attained finality.
78. The survey was conducted by a statutory authority in discharge of official duty and therefore carries a presumption of correctness under Section 114 (e) of Indian Evidence Act. In the absence of any complaint, disciplinary proceedings, or legal challenge to the survey, such bald allegations deserve outright rejection. A party cannot defeat official records by mere insinuations from the bar.
79. The plaintiff's counsel further submitted that the land grant in favour of the plaintiff's vendor made in the year 1989 has remained unchallenged for more than 3 decades and has been expressly accepted and acted upon by a competent civil law court while decree OS No.16005/2000 and executing a Registered Sale Deed in favour of the plaintiff. Once the Civil Court has accepted the validity of the grant and 70 O.S.No.3152/2003 founded its decree upon it, Defendant No.9 cannot be permitted to question the procedural aspects, authority or principles, jurisdiction relating to the said grant in this collateral civil proceedings. Any such attempt amount to an impermissible collateral attack on a concluded judicial determination which is barred in law.
80. The counsel for defendant No.10 vehemently argued that the defendant No.9 had availed the mortgage loan on 24.12.2012 for Rs. 310/- lakhs from the defendant No.10 i.e. Bank of Baroda. The defendant No.9 had created mortgage in respect of immovable properties bearing Item No.'A' and Item No.'B' as a security towards the repayment of mortgage loan.
81. The counsel for the defendant No.10 further submitted that the defendant No.9 had closed/discharged the aforesaid mortgage loan on 28.12.2013 by paying all his dues to the defendant No.10 and defendant No.10 is the mis-joinder of necessary party and he is no way connected to the suit of plaintiff for granting relief sought by the plaintiff.
71 O.S.No.3152/200382. The counsel for defendant No.9 vehemently argued that the earlier plaintiff filed injunction suit, then it was amended and converted to declaratory suit. The government acquired certain lands. Preliminary notification was issued as per Ex.D9 BDA acquired 4 acres 20 guntas and the government issued final notification as per Ex.D10 .
83. The counsel for defendant No.9 further submitted that defendant No.6 wanted to form layout in Survey No.14. So they filed application to de-notify the same, and the land was withdrawn from the land acquisition which was mentioned in Serial No.14 in Ex.D11, and 3 acres 30 guntas were de-notified on 30.10.1984. The Mujawar Syed Kareem on 21.08.1987 sold property 16 guntas to the BDA.
84. The counsel for Defendant No.9 further stated that Ex.P6 is a bogus document. If a person to become a permanent tenant, he should be in occupation of the seven guntas of land. The plaintiff produced RTC in which there is no Syed Mujawar Kareem's name found. His name is missing in that document.
72 O.S.No.3152/200385. The counsel for defendant No.9 further submitted that Ex.P6 was issued by the Thashildar, who has no authority to issue the same, and this to be issued by the Tribunal and not by Tahsildar. No signature of the Tahsildar is found in that document and Tribunal has to be established as per Section 48 of Karnataka Land Revenue Reform Act. There is a clause in Ex.P6 i.e. in the second page, saying that they cannot sell the property for 15 years.
86. The counsel for the defendant No.9 further submitted that Ex.P22 RTC doesn't disclose the name of Syed Mujawar Kareem to state that he had 7 guntas of land in his name.
87. The counsel for defendant No.9 further submitted that Ex.D13 is the award. In that right side some endorsement of de-notification is found. Here it is stated that 30 guntas. 3 acre 30 guntas acquired. 30 guntas acquired by BDA. Then there is seven guntas of land left out to be Mujawar Syed Kareem. The 7 guntas as stated by the plaintiff is not found in entire revenue records. No RTC shows other than 16 guntas Syed Mujawar Kareem had 7 guntas of land.
73 O.S.No.3152/2003He was not at all in possession of that property as stated by the plaintiff.
88. The counsel for defendant No.9 further submitted that the suit is hit by Article 54 of the Limitation Act. The time limit to file the suit is 3 years and as per Ex.P11, it says that time limit can be extended in writing only and PW.1 in his cross examination admitted that there was no extension of time.
89. The counsel for defendant No.5 vehemently argued that there is different version in plaint and affidavit. The plaintiff filed amendment of the plaint and pressed to insert the prayer for possession and it was dismissed on 18.12.2014, and he makes another attempt and that application is allowed and it was challenged as per WP No.57148/2016 and the Hon'ble High Court of Karnataka reversed the order stating that relief was not available and it is barred and it is mentioned in para 10 of the order.
90. The counsel for defendant No.5 further permitted that in additional evidence of affidavit filed by the plaintiff at para 2 specifically states about the 74 O.S.No.3152/2003 Form No.7. This Form No.7 comes under Land Reforms Act and this Form No.7 is not produced by the plaintiff nor the order of the Land Reform was produced before this Court.
91. Counsel for the defendant No.5 specifically stated that the award was passed in the year 1988 and in Ex.D13, page 11 dated 03.03.1988 clause 3 specifically states that the land vested with the BDA. Mujawar Sayed Kareem had 16 guntas in Survey No.14 and he sold the same to defendant No.6. There was no property was left out in his hand and if he has 7 guntas, then he could have 23 guntas as he had sold 16 guntas to defendant No.6. He owned only 16 guntas prior to 1988. If 7 guntas are granted to him, then the RTC could have shown in his name in the year 1970 to 1973 before filing the application for grant.
92. The counsel for the defendant No.5 further submitted that in Ex.P5, surveyor made a shara. On what authority, surveyor got to write the shara in Ex.P5 was not mentioned. It is not mentioned that to whom the notice was issued or where or present. There is a shara pertaining to RRT order and that RRT 75 O.S.No.3152/2003 no 903/94-95 order was not produced before this court.
93. Counsel for the defendant No.5 further submitted that the layout was formed in the year 1995. It means society was in already possession of the property. The vendor of the plaintiff not challenged nor taken any action pertaining to it and no action taken to get back the possession from the society. The counsel further submitted Ex.P14 (a) Sketch is attached to Sale Deed and it shows the signature of Mujawar Syed Kareem. The Sale Deed was executed in the year 2005 and at that time Mujawar Syed Kareem was not alive. Ex.P14 was executed by the court and court cannot forge this document and this document is forged by the plaintiff.
94. I have gone through the material on records, evidences put forth by both the parties, documents and arguments addressed by counsel for plaintiff and defendant.
95. Initially suit was filed as against defendant No.1 to 5. After transposing injunction suit as declaration suit, defendant No.6 to 10 were impleaded. Issues 76 O.S.No.3152/2003 were framed on 26.11.2005 and additional issues were framed on 09.08.2006 and two issues were deleted on 20.06.2008.
96. It is pertinent to note that Issue No.1 framed on 22.12.2009 already been tried as preliminary issue.
97. It is pertinent to note that Additional Issue No.1 and 3 was deleted on 20.06.2008.
98. The main question raised by the defendants is whether the suit for declaration without challenging the Sale Deed dated 21.12.1987 is maintainable. It is pertinent to note that no issues were framed as against defendant No.9 .
99. While perusing Ex.P11, the sale consideration was fixed for Rs.2,50,000/- and as per Ex.P11, he had taken Rs.50,000/- first instance and while perusing the last page, he has taken again Rs.2,00,000/-. It is pertinent to note that as per Clause 2 of Ex.P11, it is clearly mentioned that under that agreement, agreed to put up the vendor has agreed to put up the compound wall around the scheduled property at the cost of the purchaser within 2 months from the date 77 O.S.No.3152/2003 of the agreement and delivered physical possession to the purchaser. It means the vendor i.e Mujawar Syed Kareem has to put up the compound within 2 months at the cost of the purchaser i.e. M Govinda Raju. No such document was produced by the plaintiff to show that they have complied the conditions mentioned in Ex.P11.
100. Clause 3 of Ex.P11, the time stipulated for the completion of the sale transaction is fixed as 3 months from the date of putting up of the compound wall and delivering the physical possession of the schedule property to the purchaser i.e., M Govindaraju and the same can be extended by mutual consent in writing of both the parties. It is pertinent to note that these two clauses were not complied by the Govindaraju and it is pertinent to note that this document Ex.P11 was executed by the Mujawar Syed Kareem himself. On 10.01.1996 and 11.12.1997 the amount was received by the GPA holder i.e. K. M. Dastagir. It is pertinent to note that there is no mutual writing of extention of time by the Mujawar Syed Kareem and Govidaraju stating that the time was extended to execute sale deed.
78 O.S.No.3152/2003101. It is pertinent to note that Ex.P17 is the ex-parte decree and Mujawar Syed Kareem died prior to filing of the suit, but still he was made as party,and in para 4 of the judgment Ex.P17, specifically stated that defendant No.1 Mujawar Syed Kareem was died during the pendency of the suit.
102. It is pertinent to note that GPA will prevail until the principal is alive. Once the principal dies, the agent does not have any right to act as per GPA. The GPA is nothing but principal agent relationship in which agent do act on behalf of the principal. When the principal dies, then the principal agent relationship terminates automatically. When Mujawar Syed Kareem died, the GPA also comes to an end, and the GPA holder of the Mujawar Syed Kareem i.e. Dastagir cannot make any endorsement in Ex.P11 by receiving the sale consideration, as his agency terminates by the death of his principal Mujawar Syed Kareem.
103. It is pertinent to note that Ex.P10 is an appointment of agent as per GPA dated 18.2.1995. It was executed prior to Agreement of Sale Ex.P11 dated 14-6-1995. When the GPA executed prior to 79 O.S.No.3152/2003 Ex.P11, then GPA holder would have executed Ex.P 11, but here principal himself executed Ex.P11. But after his death, the GPA holder accepted the consideration and made endorsement without having legal right as an agent.
104. It is pertinent to note that Ex.D9 is the preliminary notification while perusing the Serial No.14 which shows the name of the Mujawar Kareem along with others. The property shown 4 acres 20 guntas in Survey No.14. The BDA acquired 4 acres 20 guntas as per the preliminary notification. While perusing Ex.D10, the final notification and in Serial No.14, It specifically shows that Survey No.14, 4 acres 20 guntas was acquired totally. This entire land of 4 acres 20 guntas in Survey No.14 was acquired by BDA. Defendant No.6 wanted to form the layout in Survey No.14 and they have de-notified as per Ex.D11 dated 30-10-1984. While perusing Ex.D11, which specifically stated that the Government of Karnataka withdrawn the acquisition of lands and while perusing the same, the Survey No.14 was shown and the name of Mujawar Syed Kareem also shown. In Survey No.14 out of 4 acres 20 guntas, about 3 acres 30 guntas was withdrawn from Acquisition.
80 O.S.No.3152/2003105. The plaintiff produced Ex.P5 sketch. While perusing the same, it was drafted by surveyor. It is astonishing to see that there is a note made by the surveyor stating that the RTC and revenue records pertaining to Survey No.14, about 30 guntas was mentioned to BDA and further written that the applicant had not given any property either to BDA or to society but the society has formed the layout and this layout was made illegally. The work of the surveyor is only to draw the sketch and write its dimensions and survey numbers and check boundaries. But here, surveyor made extra duty without having any power and authority to do so and verify and give the opinion of him pertaining to it. The surveyor had exceeded his jurisdiction and duty. He forgot to perform his duty and exceeded his power and declared that the lay out formed by the society is illegal.
106. It is pertinent to note that the counsel for defendant No.5 and 9 specifically contended that Ex.P6 is the created document and a bogus document. While perusing Ex.P6, it is executed by the Special Tahsildar of Bengaluru North Taluk. While 81 O.S.No.3152/2003 carefully perusing the same, It was issued by Land Criminal Bengaluru North Taluk pertaining to case number SRS ISA 411/1987-1988. The applicant is Mujawar Syed Kareem and the respondents are the Secretary. It is stated as follows:
" ಅರ್ಜಿದಾರರಾದ ಶ್ರೀ ಶ್ರೀಮತಿ. ಬೆಂಗಳೂರು ಉತ್ತರ ತಾಲ್ಲೂ ಕ ಕಸಬಾ ಹೋಬಳಿ ಭೂಪಸಂದ್ರ ಗ್ರಾಮದ ಲೇಟ್ ಸೈಯದ್ ಅಹಮದ್ ರವರ ಮಗ ಮುಜಾವರ್ ಸೈಯದ್ ಕರೀಂ ಆದ ನಾನು ಬೆಂಗಳೂರು ಉತ್ತರ ತಲ್ಲೂ ಕ ಭೂ ನ್ಯಾಯಮಂಡಳಿ ಕರ್ನಾಟಕ ಇನಾಂ ರದ್ದಾಯಿತಿ ಕಾಯಿದೆ 55 ರ ಅನ್ವ ಯ ಆದೇಶದ ಪ್ರಕಾರ ಅರ್ಜಿಯನ್ನು ಪರಿಶೀಲಿಸಿ ದಿನಾಂಕ 14-12-1988 ರಲ್ಲೂ ಬೆಂಗಳೂರು ಉತ್ತರ ತಾಲ್ಲೂ ಕ ಭೂ ನ್ಯಾಯಾಮಂಡಳಿಯು ತೆಗೆದುಕೊಂಡ ಶೀರ್ಮಾನದಂತೆ ಈ ಕೆಳಗೆ ನಮೂದಿಸಿರುವ ಸರ್ವೆ ನಂಬರ್ 14 ಭೂಪಸಂದ್ರ ಗ್ರಾಮ ಜಮೀನುಗಳಿಗೆ ಕರ್ನಾಟಕ ಇನಾಂ ರದ್ಧಾಯಿತಿ ಕಾಯಿದೆ 1955 ರ ಅಧಿನಿಯಮ 5 ರ ಮೇರೆಗೆ ಅಧಿಭೋಗದಾರನಾಗಿ ನೊಂದಾಯಿಸಲಾಗಿರುತ್ತೆ.
ಅರ್ಜಿದಾರರು, ಅಂದರೆ ಅಧಿಬೋಗದಾರರೆಂದು ನೋಂದಾಯಿಸಲ್ಪ ಟ್ಟಿರುವವರು, ಸರ್ಕಾರಕ್ಕೆ ಕಾನೂನು ಮೇರೆಗೆ ಸಲ್ಲಿಸಬೇಕಾದ ಪ್ರೀಮಿಯಂ ಹಣವನ್ನು ದಿನಾಂಕ 1989 ರಂದು ಸರ್ಕಾರಕ್ಕೆ ಪಾವತಿ ಮಾಡಿರುತ್ತೇನೆ ಚಲನ್ ನಂ.9 ಆಗಿರುತ್ತದೆ.82 O.S.No.3152/2003
ಪ್ರೀಮಿಯಂ ಮೊಬಲಗು 40/- ನಲವತ್ತು ರೂಪಾಯಿಗಳು ಮಾತ್ರ ಆಗಿರುತ್ತೆ. "
While carefully perusing the same, this document seems as written by Mujawar Syed Kareem himself. It is also pertinent to note that this document was typed in a typewriting machine and in the middle of the same it is found some hand writing words in black pen without having any initials pertaining to it. While perusing the second page there was a seal found in Kannada language without having any signature and below the annexure the seal found in English language and signature also found in the same. It is pertinent to note that if at all this document was executed by the Special Tahsildar, then he could have mentioned that this order was made by himself and he could not have mentioned it as it was made by Mujawar Syed Kareem and Special Tahsildar could have signed to the order which is missing. It is pertinent to note that in one document, two types of seals were found. One in Kannada language and another in English language, and it is astonishing to note this document which covered under cloud and it is a suspicious document and the cloud was not removed by the plaintiff by providing cogent evidence.
83 O.S.No.3152/2003107. While perusing Section 5, Section 9 of Mysore Inarm Abolition Act, 1955 It reads as follows.
Section 5, Section 9 of Mysore Inam Abolition Act, 1955 :
"Section 5 and Section 9 of the Mysore (Religious and Charitable) Inams Abolition Act, 1955, primarily govern the registration of tenants as occupants and the liability to pay land revenue upon the vesting of inam lands. Section 5 entitles permanent tenants to be registered as occupants of land, while Section 9 details their liability to pay land revenue directly to the Government.
Section 5 - Permanent Tenant Registration:
Every permanent tenant of an inamdar is entitled to be registered as an occupant of lands they held immediately before the vesting date, subject to specific conditions.
Section 9 - Land Revenue Liability: Persons registered as occupants under Section 5 84 O.S.No.3152/2003 become liable to pay land revenue to the State Government from the date of vesting."
While carefully perusing the above section, it is clearly stated that permanent tenants to be registered as occupants on certain conditions. It means there are some conditions, before registering the occupants as permanent tenants. As per this provision, from the date of vesting the person is entitled to be registered as an occupant in respect of all lands and to pay the annual land revenue in respect of the land, a permanent tenant entitled to registered as an occupant of any land and liable to pay the government as a premium for acquisition of ownership of the land and while perusing Ex.P6, the Mujawar Syed Kareem was not declared as the permanent tenant. Mujawar Syed Kareem was not shown from which date he was in occupation of the land to get the permanent tenancy.
108. It is pertinent to note that a permanent tenant entitled to be registered as an occupant shall be liable to pay the government a premium for acquisition of ownership of the land, an amount equal to 20 times such land revenue. The Ex.P6 had not stated what is 85 O.S.No.3152/2003 the total land revenue to the property and it is pertinent to note that they have mentioned in Ex.P6 as premium Rs.40/-. It is pertinent to note that as per Section 5(2), Ex.P6 should have mentioned the land revenue and the person who was declared as the permanent occupant should give 20 times of such land revenue to the government. Here the land revenue was not mentioned and there is no calculations to state that the permanent occupant has to give the 20 times of such land revenue. Moreover Ex.P6 is a typed document in which in some portions there is a handwritten averments without having any small signature.
109. While carefully going through Ex.P6, the handwritten averment stated that the said Mujawar Syed Kareem have to pay the premium amount of Rs. 40/-. It was not explained the premium is the full amount equal to 20 times land revenue to that property or monthly amount or half monthly amount. There is no such clarity found in Ex.P6.
110. While perusing Section 9 of Mysore Inam Abolition Act, 1955 as stated above, the Tribunal shall examine the nature and history of all lands in respect 86 O.S.No.3152/2003 of which a person's claim to be registered as an occupant. It means it is the Tribunal has to examine and not the Special Tahsildar as mentioned in Ex.P6. It is pertinent to note that in the Ex.P6, it has not mentioned to whom they have given notice and how many months of time they have waited to get objection after issuance of notice and when the application was filed by Mujawar Syed Kareem, and since from how many years he was occupant of that land. Ex.P6 is silent pertaining to it. There is so much discrepancies in Ex.P6, casting doubt on its genuineness. It is an unsigned self-declaration by the vendor of the plaintiff that he has been registered as the occupant of Plaint Schedule Property under Section 5 of the Karnataka Inam Abolition Act, 1955.
111. It is pertinent to note that while perusing Ex.P6, the order was passed on 17.02.1989. The Special Tahasildar signed on 22.02.1989. The insertions made in the said document in handwriting are not authenticated.
112. It is pertinent to note that as per Ex.P6, the allotment of land to the vendor Plaintiff is stated to be under the Karnataka Inam Abolition Act. It contains 87 O.S.No.3152/2003 non-alienation clause, which is stipulated only in case of lands granted under Karnataka Land Reports Act and not under the Karnataka Inam Abolition Act.
113. While perusing Section 48 of Karnataka Land Reforms Act, it shows how the tribunals to be constituted. While perusing Section 48 of Karnataka Land Reforms Act, it reads as follows.
Section 48 of Karnataka Land Reforms Act.
"48. Constitution of Tribunals.--(1) The State Government shall, by notification, constitute for each Taluk a Tribunal for purposes of this Act consisting of the following members, namely:--
(i) the Assistant Commissioner of the Revenue sub-division having jurisdiction over the Taluk or an Assistant Commissioner specially appointed for the purpose by the State Government.
(ii) four others nominated by the State Government of whom at least one shall be a person belonging to the Scheduled Castes or Scheduled Tribes, 88 O.S.No.3152/2003 [Provided that if in its opinion it is necessary so to do, the State Government may constitute additional Tribunals for any taluk and the Deputy Commissioner may, subject to any general or special orders of the State Government, distribute the work among the Tribunals in any taluk.] (2) The Assistant Commissioner shall be the Chairman of the Tribunal.
(3) The State Government may from time to time likewise re-constitute the Tribunal.
Any proceedings pending before the Tribunal shall be continued by the
reconstituted Tribunal as if the same were instituted before it.
Explanation.--For the purpose of this sub- section reconstitution' shall include removal of a member from or nomination of a new member to the Tribunal.
(4) The quorum to constitute the meeting of the Tribunal and procedure to be 89 O.S.No.3152/2003 followed by it shall be such as may be prescribed.
(5) No act or proceeding of the Tribunal shall be deemed to be invalid by reason only of the existence of any vacancy among its members or any defect in the constitution or re- constitution thereof.
(6) The non-official members of the Tribunal shall be entitled to such travelling and other allowances as may be prescribed.
(7) The Tahsildar 1[or any officer specially appointed for the purpose by the State Government]1 shall be the Secretary of the Tribunal.
As per the above provision, the State Government shall by notification constitute for each taluk a Tribunal and the Assistant Commissioner of the Revenue Sub-Division has the jurisdiction over the taluk and Assistant Commissioner specifically appointed for the purpose of the Act by the State Government and including Assistant Commissioner, 90 O.S.No.3152/2003 other 4 persons are nominated by the State Government and the Assistant Commissioner shall be the chairman of the Tribunal. As per the above provision, the Assistant Commissioner is the chairman of the Tribunal. Here in Ex.P6, the order is made by Special Tahsildar and not by the Assistant Commissioner or Tribunal. Hence, Ex.P6 is under cloud.
114. The plaintiff admitted in his cross-examination that his vendor was cultivating 16 guntas of land in Survey No.14 and he has sold the same to 6th defendant society through Sale Deed dated 21.05.1987. PW1 deposed in his cross- examination as follows:
Cross of PW1, page 42 line 10 " ಮುಜಾವರ್ ಸೈಯದ್ ಕರೀಮ್ ಸರ್ವೆ ನಂ.14 ರಲ್ಲಿ 16 ಗುಂಟೆ ಜಮೀನಿನ ಸಾಗುವಳಿ ಮಾಡುತ್ತಿದ್ದ ರು, ಆದರೆ ನಿಪಿ - 6 ರಲ್ಲಿ ನಮೂದಿಸಿದಂತೆ ಕೇವಲ 7 ಗುಂಟೆ ಜಮೀನು ಮಂಜೂರು ಆಗಿರುತ್ತದೆ."
Thus, it is clear that Mujawar Syed Kareem had sold entire 16 guntas of land in Survey No.14 to the society and received the Award.
91 O.S.No.3152/2003115. While perusing Ex.P22, RTC Pertaining to the year 1969-1970 pertaining to Survey No.14, for 4 acres 20 guntas, The name of Mujawar Syed Kareem is not shown.
116. While perusing Ex.P23, the name of Mujawar Syed Kareem was shown for Survey No.14 out of 4 acres 20 guntas the land shown as 16 guntas and this RTC was misused for the year 1976-77 to 1979-80. If at all the Mujawar Syed Kareem was in occupation of the extra land of 7 guntas as stated in Ex.P6 since 1970's or 1980's then his name could have shown in these RTCs. But nowhere in RTC, the name of Mujawar Sayed Kareem was shown pertaining to extra 7 guntas of land except 16 guntas of land in Survey No.14.
117. While perusing Ex.P24, the name of Mujawar Syed Kareem was found, but acquisition of the land was not mentioned, and also for the year 1981-82 and 1983-84. If at all Mujawar Syed Kareem had 7 guntas of land, then this could have shown in the RTC i.e., Ex.P22, 23 and 24. But in RTC not shown the 7 guntas of land occupied by Mujawar Syed Kareem. The 92 O.S.No.3152/2003 plaintiff not produced any other RTC which reflects 7 guntas of land which stands in the name of Mujawar Syed Kareem.
118. It is pertinent to note that the endorsement as stated in Ex.P6 to be issued by Inam Abolition Commissioner. The entire Inam Abolition Act not specified the power of the Special Tahsildar. Without having the power, the Special Tahsildar had issued Ex.P6 and it is under cloud.
119. It is pertinent to note that the defendant also produced Ex.D13 Award. While careful perusing the same in Serial No.6, the Survey No.14, total extent of 4 acres 20 guntas. There was a note mentioned as follows:
"Note: out of 4 acres 20 guntas of land notified for acquisition, an extent of 3 acres 30 guntas of land has been de-notified in favour of Central Excise House Building Co-
operative Society as per withdrawal notification number HUD 114 MNX 83 dated 30.10.1984. Hence, the award is passed for the remaining extent of 0-30 guntas of land. "
93 O.S.No.3152/2003As per above note, it is clear that 3 acres 30 guntas was de-notified in favour of the Central Excise House Building Co-operative Society and remaining 30 guntas was acquired by BDA and award was passed. It is pertinent to note that in that Award the para no 6, the name of Mujawar Syed Kareem was found. Then there is no remaining 7 guntas as stated by the plaintiff as entire 4 acres 20 guntas was mentioned, in which 3 acres 30 guntas was de-notified for Central Excise House Building Cooperative Society and the remaining 30 guntas was acquired by the BDA and passed the award. If at all there was 7 guntas of land remained, then this could have shown in this Award. This 7 guntas of land not at all shown in the entire revenue records. No RTC shows other than 16 guntas of land pertaining to Sy.No. 14 in the name of Mujawar Syed Kareem. He was not at all in possession of such 7 guntas of land and there is no such land as contended by the plaintiff.
120. While carefully perusing Ex.D13 Award, at page 5, the 16 guntas were shown in the name of Mujawar Syed Kareem. In Order No.26/27 and spot inspection was made and passed the award pertaining to 30 guntas in Survey No.14 of Bhoopassandra Village in 94 O.S.No.3152/2003 the name of occupants, and at page number 9, the name of Mujawar Syed Kareem was found and this award was passed on 19.03.1988. When the entire land pertaining to Survey No.14 measuring 4 acres 20 guntas was disposed as de-notification and acquisition, and award was passed on 19.03.1988 with the note as stated supra. Then there is no other land was left out in the name of Mujawar Syed Kareem. Then, how the Special Tahsildar Issue Ex.P6 on 22.02.1989. On this ground also, Ex.P6 is under cloud and this document is under doubt. The plaintiff has not removed this cloud and doubt, which shows as this document is a bogus document.
121. No RTC shows other than 16 guntas, Mujawar Syed Kareem had 7 guntas of land and he was in possession of that land. Plaintiff has not produced any other documents in support of Ex.P6 to show that Mujawar Syed Kareem had 7 guntas other than 16 guntas and he is in possession and enjoyment of the same.
122. The plaintiff produced Ex.P11, Agreement of sale. While perusing the same, this Agreement of sale was entered on 14.06.1995 between Mujawar Syed 95 O.S.No.3152/2003 Kareem and M. Govinda Raju. The efflux of time mentioned is 2 months to put up the compound wall from the date of agreement and 3 months from the date of putting up of the compound wall. It means the time starts 14.06.1995 to 14.11.1995. It is the time limit mentioned in Ex.P11 to execute the Sale Deed. The plaintiff has not shown any documents in support of that to show that Mujawar Syed Kareem had put up the compound wall as per clause 2 of Ex.P11 and after completion of the putting up of the compound wall within 3 months the Sale Deed was executed.
123. While perusing the judgment as per Ex.P17, at page 3, it is specifically mentioned that the sale consideration was fixed for Rs.2,50,000/- and paid Rs.50,000/- on 14.06.1995 directly to Mujawar Syed Kareem, who executed the sale agreement Ex.P11. Subsequently on 25.06.1995 he paid Rs.25,000/- to GPA holder Order of Mujawar Syed Kareem and on 10.01.1996 paid Rs.1,00,000/- to the GPA Holder and on 11.07.1997 another Rs.1,00,000/- was paid to the GPA Holder of the Mujawar Syed Kareem, it means in total they have paid Rs.2,75,000/-. It is pertinent to note that the sale consideration was fixed for Rs.2,50,000/-. But here they have shown that they 96 O.S.No.3152/2003 have given Rs.25,000/- more than the sale consideration.
124. While perusing cause title mentioned in Ex.P17 judgment, the suit was filed by M. Govindaraju as against Mujawar Syed Kareem. While perusing page number 2 para 4 of the Ex.P17 Judgment, it is clearly mentioned that Mujawar Syed Kareem was died during the pendency of the suit and LRs already on record and they were placed already as ex-parte. The suit against Mujawar Syed Kareem was dismissed as during the pendency of the suit, he died. Hence, Ex.P17 is an ex-parte decree, which was not contested by Mujawar Syed Kareem as he was died and after his death, notice was not issued to his sellers, as they have taken a LR's on record and already they were placed as ex-parte. It is pertinent to note that PW.1 in his cross examination in the present case he deposed as follows:
Cross of PW1, page 7, dated 21-7-2014 "Now I see Ex.P11, i.e sale agreement executed by one Mujawar Syed Kareem. I do not know in which year the said Kareem died. The said Kareem is not alive at present. I came 97 O.S.No.3152/2003 to know about his death in the year 2000. I have filed OS No.16005/2000. I do not remember whether the said Kareem was alive or not at the time of filing of OS No.16005/2000, but I remember that I brought his LRs on record in OS No.16005/2000. It might be true that the said Kareem died before filing OS No.16005/2000 as his son and general power of attorney holder Dhasthgir came and given information about the loss of said Kareem. I never seen the death certificate of Kareem. "
Thus, it is clear that before filing of OS No.16005/2000, the Muzawar Syed Kareem died. It means the Ex.P11 agreement got terminated by the death of Mujawar Syed Kareem as that agreement was executed by Mujawar Syed Kareem himself. While perusing Section 201 of Indian Contract Act, 1872, it reads as follows:
Section 201 of Indian Contract Act, 1872.
"201. Termination of agency.--An agency is terminated by the principal 98 O.S.No.3152/2003 revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors."
As per the above provision, the agency is terminated by either the principal or agent dying. Here, Mujawar Syed Kareem died prior to the execution of shara and receiving the balance sale consideration in Ex.P11. It means Ex.P10 GPA executed by Mujawar Syed Kareem was terminated. If he was present or alive, then the balance sale consideration could have been given to Mujawar Syed Kareem himself, as he only executed Ex.P11. The plaintiffs have not shown any sufficient cause to show that for what reason, the balance sale consideration was not handed over to Mujawar Syed Kareem instead of that, Govindaraju paid the balance sale consideration to GPA holder who was not party to the Ex.P11 agreement to sell. When this crucial 99 O.S.No.3152/2003 relevant fact was contented by the defendant, then it is the duty of the plaintiff to produce the death certificate of Mujawar Syed Kareem, which was not done till today. It is pertinent to note that the shara was made by the GPA holder and balance sale consideration was given to GPA holder. Then for what reason Govinda Raju has not paid the balance sale consideration with the son of Mujawar Syed Kareem. The counsel for defendant No.9 specifically stated that it is because Mujawar Syed Kareem died and to continue the Agreement of Sale, Govindaraju and Dasthagir planned to accept the balance sale consideration and make an endorsement in the Ex.P11 to make alive Ex.P11 to file the case for specific performance of the contract. This relevant fact was not disproved by the plaintiff by producing the death certificate of Mujawar Syed Kareem.
125. The main crucial point is that the plaintiff has not produced the death certificate of the Mujawar Syed Kareem either in the present suit or in OS No.16005/2000. When the plaintiff based upon the GPA of Mujawar Syed Kareem and when the defendants strongly contending that Mujawar Syed Kareem died before Dastagir, the GPA holder of 100 O.S.No.3152/2003 Mujawar Syed Kareem had accepted the further amount and made a shara in that agreement of sale Ex.P11 in the year 1996 and 1997 and due to the death of Mujawar Syed Kareem the said GPA Ex.P10 was terminated before accepting the further balance sale consideration, then it is the duty of the plaintiff to produce the death certificate. Such attempt was not made by the plaintiff till today.
126. The counsel for defendant 5 and 9 specifically stated that in OS No.16005/2000, the court also not demanded the death certificate before declaring Mujawar Syed Kareem as no more and dismissing the case as against him and in that case the legal heirs of Mujawar Syed Kareem were already arrayed as party when the suit in OS No.16005/2000 was filed and that suit was filed for specific performance of the contract and the contract was made between the present Govindaraju and Mujawar Syed Kareem, then the legal heirs of Mujawar Syed Kareem were not at all party to the said agreement itself, then what reason the plaintiff in that case had made legal heirs of the Mujawar Syed Kareem as defendants at the time of institution of suit in O.S.No.16005/2000. The counsel further stated that it means Govindaraju knew that 101 O.S.No.3152/2003 Mujawar Syed Kareem died before receiving the balance sale consideration and making shara in Ex.P11 by its GPA Holder, Dastagir and at the time of filing O.S.No. 16005/2000 and further stated that Govindaraju suppressed several material facts before the court in OS No.16005/2000. It is pertinent to note that the defendants not challenged the judgment and decree in OS No.16005/2000.
127. It is pertinent to note that Ex.P5 was prepared by the surveyor. There was a note stating that The Central Excise Housing Society had formed the layout in the plaint schedule property. It means the possession of the property was with the society. Ex.P5 survey report was prepared on 08.08.1995. It means before survey and survey report Ex.P5 the society already formed the layout and was in possession of the property. It means Mujawar Syed Kareem was not in possession of the property, and as Ex.P5 was produced by the plaintiff and was prepared as shown by Mujawar Syed Kareem. He knew that on 08.08.1995 the society already formed the layout and in possession of the property. But he has not made any effort to file suit for possession and declaration.
102 O.S.No.3152/2003PW1 in his cross-examination specifically deposed as follows:
Cross of PW1, page 12 dated 28-7-2014 line 10 " It is true that, as on the date of this suit there was no sale deed in my favour in favour of suit schedule property. The Muzawar was not alive as on the date of this suit. I am the owner of suit property as on the date of suit as per the decree passed in O.S.16005/2000. It is true that, there was no declaration of my title in respect of suit schedule property in my favour but there is direction to defendant to execute the sale deed. It is not true to suggest that I was not the owner of the suit property as on the date of this suit. It is true that, Muzawar was alive as on the date preparation of Ex.P5 i.e., survey sketch. Now I see said document i.e., remark "F UÀÄgÀÄw¤AzÀ vÉÆöÊj¹zÀÄÝ j¸À £ÀA.14 103 O.S.No.3152/2003 CVzÀÄÝ ªÀÄÄeÁªÀgï ¸ÉÊAiÀÄzï RjÃA EªÀgÀÄ C£ÀĨsÀªÀ ªÀiÁrzÀÝ dÄëģÀÄ JAzÀÄ vÉÆöÃj¹gÀĪÀgÀ d«ÄãÀÄ CVgÀÄvÀÛzÉ EzÀgÀ «¹ÛÃtð 07 UÀÄAl EgÀÄvÀÛªÉ. F UÀÄw𤠢AzÀ vÉÆÃj¹zÀÄÝ FUÀ ºÁ° d«Ää£À ¹ÜwAiÀÄAvÉ ¸ÉAlæ¯ï JPïì¸ÉÊeï ºË¹AUï ¸ÉÆöʸÉÊnAiÀĪÀgÀÄ ¯ÉÃOmï ªÀiÁrgÀÄvÁÛgÉ.
¥ÀªÀt ªÀÄvÀÄÛ gÉ«£ÀÆå jPÁqïð £ÀAvÉ j¸ÉªÉöÊ £ÀA§gï 14 gÀ°è 30 UÀÄAmÉ ªÀiÁvÀ æ ©rJUÉ JAzÀÄ zÁR¯ÁVgÀÄvÀÛzÉ. CfðzÁgÀgÀÄ vÁªÀÅ ©rJUÉ CUÀ° ¸ÉÆöʸÉÊnUÉAiÀiÁV° d«ÄãÀÄ PÉÆönÖgÀĪÀÅ¢®è JAzÀÄ ºÉüÀöÊÄvÁÛgÉ. DzÉà ¸ÉƸÉÊnAiÀĪÀgÀÄ ¯ÉÃOmï ªÀiÁrgÀÄvÁÛgÉ gÀ«£ÀÆå gÉPÁðqï£ÀAvÉ C£À¢üPÀÈvÀªÁV ¯ÉÃOmï ªÀiÁrgÀÄvÁÛgÉ.
It might be true that there is existence of layout by Central Excise housing Society earlier to 1995. I do not know whether Muzawar taken any legal action against society. I have also not taken any legal action against society in respect of alleged encroachment. It is true that, I got knowledge about formation of layout by the society before filing this suit.104 O.S.No.3152/2003
As on the date of filing of this suit the society was not a necessary party. I do not know who in what manner 30 guntas of land given to Bangalore Development Authority. It is true that, the total extent of survey No.14 of Kuppasandra village was 4 acres 20 guntas. I have verified the documents which are produced by defendant at the time of recording evidence in respect of Court fee. It is true that, the Bangalore Development Authority acquired entire 4 acres 20 guntas by way of preliminary notification dated 19/1/1978. "
Thus from the very version of the plaintiff/PW.1 it is clear that he had knowledge of formation of the layout and possession of the property by the society before filing of the suit and society was not made as party by the plaintiff. He also admitted that the total extent of Survey No.14 is 4 acres 10 guntas 20 guntas and Ex.D13 specifically shows that out of 4 acres 20 guntas, about 3 acres 30 gunta was de-notified in 105 O.S.No.3152/2003 favour of the society and Award was given pertaining to 30 guntas of land.
128. The date of knowledge of Mujawar Syed Kareem, pertaining to the possession by the society is 08.08.1995 as per Ex.P5 and the present suit was filed in the year 2003 and OS No.16005/2000 filed in the year 2000. It is pertinent to note that the present suit was filed on 02.05.2003. As on the date of filing of the suit, the plaintiff was not at all the owner of the property and not in possession of the property. As per Ex.P14, the Sale Deed was executed on 23.08.2005 in favor of plaintiff It means prior to Ex.P14 Sale Deed, the plaintiff filed present suit saying as he is the owner of the property. No explanation was given by the plaintiff to this relevant fact.
129. It is pertinent to note that this suit is filed in the year 2003 and defendant No.2 filed his written statement on 02.09.2003, defendant No.3 filed written statement on 17.01.2005 and defendant No.5 filed written statement on 25.01.2008 and defendant No.9 filed written statement on on 12.11.2021 and defendant No.10 filed written statement on 04.10.2021. Defendant No.8 filed written statement 106 O.S.No.3152/2003 on 29.10.2021. The defendant No.5 specifically stated in his written statement para 2 that the society purchased the property from Mujawar Syed Kareem on 21.12.1987 and on 11.06.1992 the said society executed the Sale Deed in favour of defendant No.1 and on 16.08.2002 the defendant No.5 purchased the site from first defendant. While perusing Ex.P11 agreement to sell, the date of this agreement is 14.06.1995 and Mujawar Syed Kareem sold his entire property to the society on 21.12.1987 and received the award. It means prior to Ex.P11 agreement to sell, Mujawar Syed Kareem had sold entire his property to the society and received Award. As this court has discussed supra stating that the plaintiff has not produced any document to state that he has 7 guntas of land except 16 guntas in the name of Mujawar Syed Kareem. The plaintiff had not made any attempt to declare the Sale Deeds as null and void or cancellation of the Sale Deeds. The plaintiff had noted these facts even when the defendant No.5 filed the written statement on 25-8-2008.
130. It is pertinent to note that the defendants specifically stated that the possession is with them and Mujawar Syed Kareem had no point of time had 107 O.S.No.3152/2003 the seven guntas of land as stated by the plaintiff. It is pertinent to note that Plaintiff had not sought any relief for possession of the property. PW.1 specifically deposed in cross examination as follows.
Cross of Pw1 page 23 dated 22-8-2014
" It is true that, the defendant No.5
has constructed a house on site
No.50. Witness volunteers that, it is part of suit property as I do not know where exactly site No.50 situated, but there is a construction in my property. I have no documents to show that existence of site No.50 in suit property. "
131. The PW.1 specifically stated that Defendant No.5 constructed a house in Site No.50 and he started constructing the house in the year 2003 and completed in the year 2006. But Plaintiff not sought any relief for possession of the property. While perusing Section 34 of Specific Relief Act, it reads as follows.
108 O.S.No.3152/2003Section 34 of Specific Relief Act.
"34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."109 O.S.No.3152/2003
While perusing the provision of Section 34, it is clearly stated that no court shall make any such declaration where the plaintiff has to seek the further relief than mere declaration of title and omits to do so. Here the plaintiff omitted to seek for possession of the property and also for cancellation of the Sale Deed or declaring the Sale Deeds as null and void. Hence, the suit of the plaintiff is hit by Section 34 of Specific Relief Act.
132. It is pertinent to note that the grievance of the plaintiff against the defendant No.5 in the suit is that defendant No.5 has built a house in Site No.50 and contended that site No.50 of the fifth defendant is situated in the plaint schedule property or forms part of it. On the other hand plaintiff also has agreed in the trial that Site No.50 is not formed in the plaint schedule property which is clearly borne by the suggestions made to DW.2 in its cross examination by the learned counsel for the plaintiff. The suggestion of the Plaintiff's learned counsel to DW.2 was that the suit schedule property and Site No.50 are deprived properties. While perusing the cross-examination of DW.2 is as follows:
110 O.S.No.3152/2003Cross-of DW2, page 12 line 8 " It is true that, the suit schedule property and my site No.50 are totally different.
Que: The suit schedule property and
site No.50 are two different
properties?
Ans: Yes "
133. When the plaintiff taken clear stand in the trial that Site No.50 is not formed in suit schedule property and that both are separate properties, the very foundation on which the plaintiff has tried to build his case against the defendant No.5 has collapsed completely. Moreover, the plaintiff also put a suggestion stating that there was no lay-out was formed in Survey No.14. The cross-examination done by the plaintiff's counsel to DW.2 is as follows:
Cross of DW2 page 11.
" It is not true to suggest that there is no formation of layout in survey No.14 by society. It is not true to suggest that the site No.50 is not in existence in survey 111 O.S.No.3152/2003 No.14. I have no objection for appointment of commissioner in this case, witness volunteers that, there is no existence of suit property as contended by the plaintiff."
134. When the plaintiff suggests stating that there is no formation of lay out in Survey No.14, the question of Site No.50 of the fifth defendant being formed in it or forming part of it does not arise at all. While perusing the cross- examination of PW1, he deposed as follows:
Cross of PW1, page 23 " It is true that, the defendant No.5 has constructed a house on site No.50. Witness volunteers that, it is part of suit property as I do not know where exactly site No.50 situated, but there is a construction in my property. I have no documents to show that existence of site No.50 in suit property. The defendant No.5 started construction in the year 2003.112 O.S.No.3152/2003
The construction was completed in the year 2006. After seeing the construction carried by the defendant No.5 I had been to Police station lodged complaint against him. I have not made defendant No.5 as party in the suit because I have no knowledge about alienation of property in favour of defendant No.5 by defendant No.1.
It is not true to suggest that the defendant never interfered in my possession as I am not in possession of suit property. I do not know whether site No.50 is not part and parcel of the survey No.14 "
Thus, it is clear that the plaintiff failed to prove that site No. 50 comes under plaint schedule property and he has not produced any iota of proof to prove the existence of plaint schedule property and site no 50 is formed in plaint schedule property as contended in the plaint.113 O.S.No.3152/2003
135. Para 9 (a) of the plaint and para 7 of its affidavit evidence, the plaintiff has contended that its vendor has granted the suit schedule property by the Land Tribunal in LRF IND 411/1987-88DT Dated 17.02.1989.
Even though in page 11 of his cross-examination, the plaintiff has admitted that his vendor had handed over to him the order copy of the Land Tribunal. The same has not been produced before this Court till today.
136. It is pertinent to note that the plaintiff had not produced any documents to show that his vendor was holding possession of the property. But he admits that Earlier to 1995, there is existence of lay-out by Central Excise Housing Society. In the cross- examination of PW1, it deposed as follows:
Cross-of PW1 Page No.13 " It might be true that there is existence of layout by Central Excise housing Society earlier to 1995. I do not know whether Muzawar taken any legal action against society. I have also not taken any legal action 114 O.S.No.3152/2003 against society in respect of alleged encroachment. It is true that, I got knowledge about formation of layout by the society before filing this suit. As on the date of filing of this suit the society was not a necessary party. I do not know who in what manner 30 guntas of land given to Bangalore Development Authority. It is true that, the total extent of survey No.14 of Kuppasandra village was 4 acres 20 guntas. I have verified the documents which are produced by defendant at the time of recording evidence in respect of Court fee. It is true that, the Bangalore Development Authority acquired entire 4 acres 20 guntas by way of preliminary notification dated 19/1/1978. "
As per the version of PW.1, he knew the existence of the layout earlier to 1995. He also admitted that he has no document to show that his vendor has handed 115 O.S.No.3152/2003 over the possession of the plaint schedule property to him. PW1 in his cross-examination deposed as follows:
Cross-of PW1 page 19 line 7
" There is no recital is forthcoming
in agreement of sale marked at
Ex.P11 in respect of handing over the possession of property in my favour. I have no documents to handovering the possession of property except agreement."
Thus it is clear that there is no document to show that the property was handed over to the plaintiff. While perusing Ex.P11, as per clause 2 and 3 of the said agreement, the vendor has to deliver possession of the plaint schedule property to the plaintiff only after putting up the compound wall within 2 months from the date of the agreement. And PW1 admitted in his cross-examination that his vendor never put up the compound wall. While perusing the cross-examination of PW.1, he deposed as follows:
Cross of PW1, page 8 line 24 " The Kareem had agreed that he will put compound around to the suit 116 O.S.No.3152/2003 property within 2 months from the date of agreement. Witness volunteers that, he was delaying as he was getting survey sketch. He never put up compound, but I myself constructed a compound around to suit property."
Thus, it is clear that as per the condition in Ex.P11, Mujawar Syed Kareem not constructed the compound wall, and as per Ex.P11, after putting up the compound wall, the possession to be handed over. But here compound wall was not constructed by the Mujawar Syed Kareem. Hence no possession was handed over to the plaintiff. There is no iota of evidence to prove the same produced by the plaintiff.
137. The plaintiff in the cross-examination contended that he had constructed the compound wall and small house in the plaint schedule property. But he has not produced any kind of documents or photographs to show that there is a shed and compound wall constructed by the plaintiff. PW1 deposed in its cross- examination as follows:
117 O.S.No.3152/2003Cross of PW1, page 9, line 9.
" I am able to produced the
documents for the purchase of
construction materials about
construction of a compound. I have no photos about the construction of compound over the suit property. "
As per his version, he doesn't have any photographs nor he had produced the same before this court to show that plaint schedule property has compound wall with shed as alleged by the plaintiff. The plaintiff says that he has constructed the house and he is residing in the plaint schedule property and he has put up the compound wall and shed. But he says that he had not obtained any water connection or electric connection to this. The cross of PW1 in the cross examination as follows:
Cross of PW1. Page 22 line 5 " I have constructed a house over the suit property in the year 1996. I have not taken sanction plan to construct 118 O.S.No.3152/2003 a house. Witness volunteers that, there is a compound wall and shed over the suit property. There is no water and power supply in the said shed. "
Thus, it is clear that the version of the plaintiff is unbelievable and the evidence of the plaintiff is untrustworthy. Plaintiff miserably failed to prove that 5th defendant has put up construction during the pendency of the suit. As plaintiff has specifically admitted that Site No.15 and plaint schedule property are different and separate properties and plaintiff has not produced any document to show that Site No.15 of the fifth defendant is the portion of the plaint schedule property.
138. The plaintiff contends that he had entered into Agreement of Sale Ex.P11 with this vendor on 14.06.1995. In the survey sketch made on 06.03.1995 as Ex.P5, there is a clear endorsement that 6th defendant society has already formed the layout in the property before 1995. The plaintiff's vendor and the plaintiff knew in the year 1995 itself that plaint schedule property was in possession and enjoyment 119 O.S.No.3152/2003 of the 6th defendant society and its successors in interest. Neither he nor his vendor took any legal action against the 6th defendant society, in spite of knowing about the formation of the lay-out by it earlier to the year 1995. According to the plaintiff, the cause of action for the suit arose for his vendor even before he entered into Agreement of Sale dated 14.06.1995 with his vendor and for him it arose on 14.06.1995 and the suit was filed in the year 2003.
139. The plaintiff has not produced any document or iota of proof to show the existence of the plaint schedule property and even not produced any document to show that he had put compound wall, shed and residence and he is staying in that residence. It is pertinent to note that the plaintiff had admitted that Ex.P20 photo was taken when the defendant No.5 was constructing in Site No.15. The PW1 in his cross-examination stated as follows:
Cross of PW1, page 18 line 21 " Now I see 8 photos which are marked at Ex.P20. It is true that, I snapped those photos during the 120 O.S.No.3152/2003 construction of house by defendant No.5."
As per the above version there was no compound wall put up by the plaintiff and there is no shed put up by the plaintiff and he admitted that the photo shown in Ex.P20 are the constructions made by the defendant No.5 and not by the plaintiff. In that photo, the plaintiff has not shown his shed and his compound wall and it is not the case of the plaintiff to state that the shed was demolished by the defendants.
140. It is pertinent to note that the survey sketch Ex.P5 was not proved through its author as he was not examined even though it was challenged by the defendants and plaintiff has not stated for what reason this sketch was prepared and whose instance the sketch was prepared and who were all present when the survey was done. While perusing the cross- examination of PW1, he deposed as follows:
Cross of PW1 page 32 line 11 " ನಿಪಿ-5 ಸರ್ವೆ ಸ್ಕೇಚನ್ನು ಮುಜಾವರ್ ಸೈಯದ್ ಕರೀಮ್ ರವರು ಸಲ್ಲಿಸಿದ ಅರ್ಜಿಯ ಅಧಾರದ ಮೇಲೆ ತಯಾರು 121 O.S.No.3152/2003 ಮಾಡಲಾಗಿರುತ್ತದೆ. ನಿಪಿ-5 ರಂತೆ ಸ್ಕೇಚನ್ನು ತಯಾರಿಸುವ ಪೂರ್ವದಲ್ಲಿ ಯಾರು ಯಾರಿಗೆ ನೋಟೀಸನ್ನು ಕೊಟ್ಟಿರುತ್ತಾರೆಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ನಿಪಿ-5 ದಾಖಲೆಯನ್ನು ಪಡೆದುಕೊಳ್ಳ ಲು ಮುಜಾವರ್ ಸೈಯದ್ ಕರೀಮ್ ಯಾವಾಗ ಅರ್ಜಿ ಅಲ್ಲಿಸಿದ್ದ ರು ಎಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ .
ಪ್ರಃ ನಿಪಿ-5 ರಂತೆ ನಕ್ಷೆ ತಯಾರಿಸುವ ಪೂರ್ವದಲ್ಲಿ ಸರ್ವೆ ಇಲಾಖೆಯವರು ಸಿ.ಹೆಚ್.ಬಿ.ಸಿ.ಎಸ್. ರವರಿಗಾಗಲಿ ಅಥವಾ ಸೈಟನ್ನು ಖರೀದಿಸಿದಂತಹ ವ್ಯ ಕ್ತಿಗಳಿಗಾಗಲಿ ನೋಟಿಸನ್ನು ನೀಡಿರುವುದಿಲ್ಲ ?
ಉಃ ಅದರ ಬಗ್ಗೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ .
ನಿಪಿ-5 ರಂತೆ ನಕ್ಷೆ ತಯಾರಿಸುವ ಪೂರ್ವದಲ್ಲಿ ಸರ್ವೆ ಇಲಾಖೆಯವರು ಸಿ.ಹೆಚ್.ಬಿ.ಸಿ.ಎಸ್. ರವರಿಗಾಗಲಿ ಅಥವಾ ಸೈಟನ್ನು ಖರೀದಿಸಿದಂತಹ ವ್ಯ ಕ್ತಿಗಳಿಗಾಗಲಿ ನೋಟಿಸನ್ನು ನೀಡಿದೇ ಇರುವುದರಿಂದ, ಸದರಿ ವಿಷಯವನ್ನು ನಿಪಿ-5 ರಲ್ಲಿ ನಮೂದಿಸಿರುವುದಿಲ್ಲ ."
As per the version of PW1, he admits that no notice was given to the purchasers of the property and also 6th defendant Society. Thus, it is clear that Ex.P5 survey sketch has no evidentiary value.
141. It is pertinent to note that the identity, either the location or the existence of the area of the land, as stated by the plaintiff, is not shown.
122 O.S.No.3152/2003142. The counsel for the defendant No.5 relied upon a citation rendered in P.L. Nagendra Babu v. Manohar Rao Pawar reported in ILR 2005 KAR.
884. Head Note C. "(c) SUIT FOR DECLARATION AND INJUNCTION - REQUIREMENT OF EVIDENCE - DUTY OF THE COURT -
HELD- Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted."
The ratio laid down in the above citation is also aptly applicable to the case in hand. In this case plaintiff failed to show that the plaint schedule property is situated in Survey No.14. There is no materials of evidence produced by the plaintiff for the identification of the plaint schedule property. There is so much infirmities in the evidence and documents produced by the plaintiff and plaintiff already stated that the property of the defendant No.9 and 5, which is Site No.50 is different from the plaint schedule property.
123 O.S.No.3152/2003143. It is pertinent to note that defendant No.9 had availed the mortgage loan on 24.12.2012 for Rs.310/- lakhs from defendant No.10. and defendant No.9 discharged the aforesaid mortgage loan on 28.12.2013 by paying all its dues to the defendant No.10. Thus the defendant No.10 is the mis-joinder of necessary parties as he is not a necessary party to the present suit.
144. Thus, plaintiff failed to prove his case through oral and documentary evidence. Hence I answered Issue Nos.1 to 3 in the Negative, Addl. Issue No.2 dated 09-08-2006 in the Negative, Addl. Issue No.1 to 4 dated 14-02-2008 in the Negative, Addl. Issue dated 12.11.2013 in the Affirmative, Addl. Issue No.1 and 2 dated 25.10.2021 in the Affirmative
145. ISSUE No.4:- In view of the findings on the above issues, I proceed to pass the following :-
O R D E R The suit of the plaintiff is hereby dismissed.124 O.S.No.3152/2003
Draw decree accordingly.
(Dictated to the Grade -III Stenographer directly on the Computer, corrected and then pronounced by me in the open court, on this the 25th day of April 2026).
(MAMTAZ) XXXIX Additional City Civil & Sessions Judge, Bengaluru City.
***** A N N E X U R E Witnesses examined for the plaintiff :
PW.1 Govindaraju Documents marked for plaintiff : Ex.P1 Tax paid receipt Ex.P2 Tax paid receipt Ex.P3 RTC Ex.P4 MR extract Ex.P5 Sketch of Re.sy.No.14 Ex.P6 Grant Certificate Ex.P7 M.R extract Ex.P8 RTC Ex.P9 Certified copy of tax paid receipt Ex.P10 Copy of GPA Ex.P11 Copy of agreement to sell 125 O.S.No.3152/2003 Ex.P12 Genealogical tree Ex.P13 EC Ex.P14 Sale deed under Execution No.15080/03 with sketch. EX.P14(a) Sketch Ex.P15 M.R. Ex.P16 RTC Extract for the year 2011-12 Ex.P17 Certified copy of the Judgment in O.S.No.1600/2005. Ex.P18 RTC extract in respect of Survey No.14 for the year 2009-10. Ex.P19 Certified copy of the Decree in O.S.No.16005/2000. Ex.P20 8 photos Ex.P21 Negatives EX.P22 Certified copy of RTC in respect of Sy.No.14 for the year 1969-70 to 1970-71. Ex.P23 Certified copy of RTC in respect of Sy.No.14 of Kasaba Village for the year 1976-77 to 1979-80. Ex.P24 Certified copy of RTC in respect of Sy.No.14 of Kasaba Village for the year 1981-82 to 1983-84. Ex.P25 Certified copy of RTC in respect of Sy.No.14 of Kasaba Village for the year 1989-93. Ex.P26 Certified copy of RTC in respect of Sy.No.14 of Kasaba village for the year 1994-95 to 1996-97. 126 O.S.No.3152/2003 Ex.P27 Certified copy of RTC in respect of Sy.No.14 of Kasaba village for the year 1997-98 to 2001-02. Ex.P28 The Hindu English Daily News Paper, Bangalore Edition dated 20/10/2004. Ex.P28(a) Page No.8 Relevant portion of Ex.P28.
Witnesses examined for defendants:
DW.1 Sri R. Venkatasubramanian
DW.2 Sri S.P. Aditya
Documents marked for defendants :
Ex.D1 GPA dated 10.03.2000
Ex.D2 Original Sale deed 11.06.1992
Ex.D3 Original Sale deed 16.08.2002
Ex.D4 Certificate issued by BBMP.
Ex.D5 Certificate
Ex.D6 Tax paid receipt
Ex.D7 Tax paid receipt
Ex.D8 CDP issued by BDA
Ex.D9 Notification published in Karnataka
to Gazette
Ex.D11
Ex.D12 Endorsement issued by Land
Acquisition Officer.
Ex.D13 Award
127 O.S.No.3152/2003
Ex.D13(a) Sy.No.marked portion in Ex.D13 Ex.D14 Envelope containing copy of the Award issued under Right to Information Act.
Ex.D15 RTC extract for the year 1976 to 1979.
Ex.D15(a) The extent of 16 guntas holding by Mujawar.
Ex.D16 Copy of resolution passed by
Bangalore Development Authority
on 30/4/1984.
Ex.D17 Certified copy of the sale deed
dated 21/12/1987 executed by
Muzawar Syed Kareem in favor of
society.
Ex.D18 Copy of modified layout plan dated
18/7/1995.
Ex.D19 Endorsement given by BDA dated
19/7/2013.
Ex.D20 Khatha certificate issued by BBMP.
Ex.D21 Khatha extract issued by BBMP.
Ex.D22 Tax paid receipt for the year 2014-
15 property of 5th defendant.
Ex.D23 Sanction plan of 5th defendant's
house.
(MAMTAZ)
XXXIX Additional City Civil &
Sessions Judge, Bengaluru City.
*****
Digitally signed
by MAMTAZ
Date:
MAMTAZ 2026.05.04
11:08:18
+0530