Bangalore District Court
R Sunil Kumar vs T R Yogananda on 4 February, 2025
KABC0A0028312012
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL, BENGALURU.
(CCH-74)
P r e s e n t:
Smt. Anitha N.P., B.A.L., L.L.M.,
LXXIII Addl.City Civil & Sessions Judge, Bengaluru
Dated this the 04th day of February, 2025.
O.S. No.25250/2012
Plaintiffs:- R. Sunil Kumar
S/o: Sri. B. Rama Swamy,
Aged about 46 years
Ra/t No.43/16-143,
9th cross, 38th, Main Sarakki
J.P.Nagar I Phase, Bengaluru-78.
(Rep by Sri. C.Jairamaiah - Adv.)
-Vs-
Defendants:- 1. T. R. Yogananda,
S/o: Late T.C. Ramaswamy,
Major
2
O.S. No.25250/2012
2. T. R. Devaraj,
S/o: Late T.C. Ramaswamy,
Since dead by his LR
3. Smt. Sumathi R.
W/o: late T. R. Devaraj,
Major,
R/at: No.9. 10th Cross,
Ashoknagar, Banashankari II Stage,
Bengaluru-560050.
4. B. N. Jai Kumar,
Aged about 42 years,
S/o: Late B.Narayana Rao,
R/at: No.181/A, 15th Main, II Block,
Banashankari I Stage,
Bengaluru-560050.
(For D1 & 2 By Sri. CBS.
For D3 By Sri. VBS - Adv.)
Date of institution of the suit : 03.02.2012
Nature of the suit (Suit for pro-
note, suit for declaration and : Declaration and injunction
injunction,suit for injunction,
etc)
Date of commencement of : 27.01.2017
recording of evidence
3
O.S. No.25250/2012
Date on which the Judgment : 04.02.2025
was pronounced
Total duration Year/s Month/s Days
13 00 01
Digitally signed by
ANITHA
ANITHA NANJANAGUDU
NANJANAGUDU PARASHIVAMURTHY
PARASHIVAMURTHY
Date: 2025.02.21
15:19:48 +0530
(Anitha N.P.)
LXXIII Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74)
J U D G M E N T
The plaintiff has filed this suit as against defendants No.1 to 3 seeking the relief declaration of his title, for cancellation of sale deed dated 06.02.2009 executed by defendant No.1 in favour of defendant No.3, for permanent injunction and for damages.
By way of filing Memo on 20.11.2024 the plaintiff not pressed the relief of damages.
2. Brief facts of the plaint averments are as under:- 4
O.S. No.25250/2012 The plaintiff is an X-serviceman served for 19 years in Indian Army from 1985 to 2003 and after his retirement he purchased the suit schedule property from one M.Nagachari for valuable sale consideration under registered sale deed dated 23.02.2004. Since the date of purchase he is in possession and enjoyment of suit schedule property along with his family members.
3. It is the further case of the plaintiff that he had borrowed loan of Rs.3,50,000/- on 01.10.2006 from Bharathi Co- operative Credit Society Limited, Jayanagar, Bengaluru and constructed a residential building in the suit schedule property.
4. It is the further case of the plaintiff that one R.Ashok Kumar is his elder brother and he introduced defendant No.1 to 3 who are doing real estate business and getting commission. The defendant No.1 to 3 used to take stamp papers in their 5 O.S. No.25250/2012 names and in the name of individuals for the purpose of drafting agreements, deeds etc. There arose misunderstanding in respect of distribution of profit between defendant No.1 to 3 and they kidnapped the elder brother of plaintiff i.e., R.Ashok Kumar to extort money and thereby they forcibly obtained the LTM and signatures of said R.Ashok Kumar on the blank stamp papers on the guise that the said R.Ashok Kumar is the absolute owner of the plaint schedule property.
5. It is the further case of the plaintiff that elder brother of the plaintiff lodged complaint before the Subramanyapura Police Station as against the defendant No.1 to 3 and the case in Crime No.503/2009 for the offence punishable u/sec.504 and 506 of IPC was registered. Subsequent to said complaint the plaintiff also lodged complaint against the defendant No.1 to 3 before the J.P.Nagar Police Station and the Police have registered Crime 6 O.S. No.25250/2012 No.580/2009 for the offence punishable u/sec.468, 471, 420 r/w sec.34 of IPC. The Police have summoned the defendant No.1 to 3 to the Police Station and they seized blank signed bond paper bearing No.824381 and 874431 from defendant No.1 to 3 which they have obtained from elder brother of plaintiff. The defendants have misused the blank signed paper which has the signature of elder brother of plaintiff and thereby they have created GPA by removing the signature of the elder brother of the plaintiff by using chemical and inserted the forged signature of the plaintiff in the blank paper bearing No. 824381 and 874431 in the name of plaintiff as if it is executed by plaintiff in favour of defendant No.1. The defendant No.1 to 3 thereafter have created sale deed dated 06.02.2009 in favour of defendant No.3 with malafide intention to grab the suit schedule property. 7
O.S. No.25250/2012
6. It is the further case of the plaintiff that J.P.Nagar Police have not properly conducted investigation and submitted B report before the 5th ACMM, Bengaluru and the same was challenged by the plaintiff by filing the protest petition in Crime No.580/2009.
7. It is further case of the plaintiff that the defendant No.1 to 3 have created sale deed dated 06.2.2009 and they shown the sale consideration as Rs.26 lakhs stating that Rs.10 lakhs and Rs.5 lakhs has been paid to plaintiff by way of cheque No.317090 and 317091 and Rs.11 lakhs was paid by way of cash and defendant No.3 consented to clear the loan before Bharathi Co-operative Credit Society Limited are all false. When the sale consideration was Rs.26 lakhs and when it is shown as Rs.11 lakhs was paid by cash and Rs.10 lakhs and further sum of Rs.5 lakhs was shown as paid by way of cheques then question to 8 O.S. No.25250/2012 clear the loan itself is false. Accordingly, the said sale deed is liable to be cancelled. On the above grounds he filed this suit and prays to decree the suit.
8. After receiving the suit summons the defendant No.1 to 3 appeared before the court through their counsels and during the pendency of the suit the defendant No.2 was reported to be dead and his LR was brought on record. The defendant No.1 and 2 have filed their separate written statement and defendant No.3 filed his separate written statement.
9. Brief facts of the written statement averments of defendant No.1 & 2 is as follows:
The defendant No.1 and 2 in their written statement admitted that plaintiff purchased the suit schedule property under registered sale deed dated 23.03.2004 from Nagachari and also admits plaintiff has obtained loan of Rs.3,50,000/- from 9 O.S. No.25250/2012 Bharathi Co-operative Credit Society Limited and the plaintiff constructed residential building. However, they denied the other averments of the plaint and contended that they know Ashok Kumar and he introduced the plaintiff to them and plaintiff offered to sell the suit schedule property for consideration. The plaintiff has prepared the document along with Ashok Kumar and thereafter the signatures were obtained. The brother of the plaintiff lodged a complaint before the Subramanyapura Police Station as against the defendant No.1 to 3 and in the said case the police have submitted B report. The police have taken report from Forensic department and the same shows that the signatures on the documents was that of the plaintiff. The plaintiff also lodged complaint and there also the police have submitted B report and the same is proper. There is no such fabrication, forgery as alleged by the plaintiff. The defendants 10 O.S. No.25250/2012 are respectable persons and they have not indulged in any case of the sale of the property and appropriate payments are made for transaction, the plaintiff has received payments and thereafter executed the documents. Hence, it is with consent of the plaintiff the property was sold to the defendant No.3. The plaintiff intentionally filed protest memo to the B report. Accordingly, they prays to dismiss the suit with costs.
10. Brief facts of the written statement averments of defendant No.3 is as follows:
The defendant No.3 in his written statement admitted that the plaintiff purchased the suit schedule property under sale deed dated 23.02.2004 and admitted that plaintiff borrowed loan of Rs.3,50,000/- on 01.10.2006 however, he denied the other averments of the plaint.
11. The defendant No.3 has contended that suit is barred by law of limitation, it is one Ashok Kumar who is the elder 11 O.S. No.25250/2012 brother of the plaintiff is known to him, he negotiated and promised to convey the title in respect of the property and accordingly as a co-applicant he executed document. Brother of the plaintiff lodged complaint before the Subramanyapura Police Station and a criminal case was registered as against defendant No.3 for the offence punishable u/sec.504 and 576 of IPC, it is after investigation the police have submitted B report on the ground that the signatures are that of the plaintiff and also that of the elder brother of the plaintiff by name Ashok Kumar. The plaintiff also lodged a complaint as against defendants before the J.P.Nagar Police Station for the offence punishable u/sec.468, 471, 420 of IPC. There also report was filed holding that complaint is false. The transaction indicated under the GPA is genuine with full consciousness of plaintiff and his elder brother and the transaction is concluded transaction. 12
O.S. No.25250/2012
12. It is the further contention of this defendant that he approached defendant No.1 and 2 and the defendant No.1 and 2 were possessing 2 documents i.e., GPA and Agreement to sell. The plaintiff himself executed the said agreement to sell and it was got typed by the plaintiff on stamp paper standing in the name of Yogananda and the 2 nd defendant and it was executed in the presence of two witnesses by name Shashidhar and Venkatesh Babu. Thereafter the plaintiff executed the GPA for the purpose of conveying title. The consideration was fixed for Rs.26 lakhs. It was also agreed between them to complete transaction within 18 months from the date of agreement. The thumb impression was made so as to avoid disputing of the signatures. The sale deed was executed in terms of GPA and agreement. As the property documents were with Bharathi Co- 13
O.S. No.25250/2012 operative Credit Society Limited a notice was given on 30.08.2009 seeking return of documents.
13. It is the further case of the defendant No.3 that he filed civil suit in O.S.No.6432/2009 as against the occupants Rame Gowda and Manjunath in respect of suit premises. The plaintiff was also made party to the said suit. The said suit was filed only to see that the possession is not delivered to any third party. What is pleaded in the present plaint is not pleaded in the written statement filed by this plaintiff in the said suit.
It is the further case of the defendant No.3 that he also filed O.S.No.2587/2010 as against Bharathi Co-operative Credit Society Limited. It was filed seeking to return the documents after receiving the balance loan amount which was due from the plaintiff. In the said suit the said bank has filed written statement. The plaintiff herein has also filed written statement 14 O.S. No.25250/2012 in the said suit there also the plaintiff herein has not stated anything which is stated in the present plaint.
14. It is the plaintiff and his brother approached the defendant No.1 and 2 along with GPA and affidavit. In the GPA the power was given to receive the khatha, to sell, alienate or mortgage the property etc. The plaintiff appeared before the advocate V.Ranga Ramu and got the document notarized. An agreement to sell was also came to be executed. The consideration being fully received there is no right as claimed by the plaintiff in him. The possession of suit schedule property is with tenants. Accordingly, he prays to dismiss the suit.
15. Based on the pleadings, my Predecessor-in-office has framed following issues:
I S S U E S
1) Whether the plaintiffs proves that he is absolute owner in lawful possession and 15 O.S. No.25250/2012 enjoyment of the suit schedule property as on the date of the suit?
2) Whether plaintiff proves that the sale deed dated 06.02.209 executed by defendant No.1 in favour of defendant No.3 is liable to be canceled?
3) Whether plaintiff proves that the alleged interference of defendant over the suit schedule property?
4) Whether the plaintiff proves that he is entitled to the relief's of as sought for in the plaint?
5) What order or decree?
16. That to prove the case of plaintiff, got himself examined as P.W.1 and got marked Ex.P.1 to P.32 documents. On the other hand, defendant No.1 and 3 examined as DW1 and 2, got marked Ex.D1 to D.16 documents.
16
O.S. No.25250/2012
17. Heard arguments of both sides and perused the pleadings, evidence, documents and available materials on record and also the written synopsis of defendants.
18. My answer to the above issues are as under:-
Issue No.1:- In the Affirmative Issue No.2:- In the Affirmative Issue No.3:- In the Affirmative Issue No.4:- In the Affirmative Issue No.5:- As per final Order for the following R E A S O N S
19. ISSUE No:-1 and 2: Since both these issues are inter-linked with each other, I proceed to discuss together, in order to avoid repetition of facts and evidence.
20. It is the specific case of the plaintiff that he is retired army man and he purchased the suit schedule property from one M.Nagachari under sale deed dated 23.02.2004 and since the 17 O.S. No.25250/2012 date of purchase he is in possession and enjoyment of suit schedule property along with his family members and he constructed a residential building by borrowing loan from Bharathi Co-operative Credit Society Limited. He is having a brother by name R.Ashok Kumar and he introduced defendant No.1 to 3 who are doing real estate business and getting commission. Due to misunderstanding in respect of distribution of profit between defendant No.1 to 3 they kidnapped R.Ashok Kumar and they forcibly obtained the LTM and signatures of said R.Ashok Kumar on the blank stamp papers on the guise that the said R.Ashok Kumar is the absolute owner of the plaint schedule property. His brother lodged complaint before the Subramanyapura Police Station as against the defendant No.1 to 3 and Crime No.503/2009 for the offence punishable u/sec.504 and 506 of IPC was registered and plaintiff also lodged 18 O.S. No.25250/2012 complaint against the defendant No.1 to 3 before the J.P.Nagar Police Station and the Police have registered Crime No.580/2009 for the offence punishable u/sec.468, 471, 420 r/w sec.34 of IPC. The Police have seized blank signed bond paper bearing No.824381 and 874431 from defendant No.1 to 3. The defendants have created GPA and thereafter have created sale deed dated 06.02.2009 in favour of defendant No.3 with malafide intention to grab the suit schedule property. The police without conducting proper investigation submitted B report and plaintiff filed protest petition in Crime No.580/2009.
21. On the contrary it is the specific case of the defendants No.1 and 2 is that the plaintiff himself has executed the GPA in favor of defendant No.1 and the brother of the plaintiff lodged a complaint before the Subramanyapura Police Station as against the defendant No.1 to 3 and in the said case 19 O.S. No.25250/2012 the police have submitted B report. The police have taken report from Forensic department and the same shows that the signatures on the documents was that of the plaintiff. The plaintiff also lodged complaint and there also the police have submitted B report and the same is proper. The defendants are respectable persons and they have not indulged in any case of the sale of the property and appropriate payments are made for transaction, the plaintiff has received payments and thereafter executed the documents.
22. It is the specific case of the defendant No.3 that it is one Ashok Kumar brother of the plaintiff negotiated and promised to convey the title in respect of the property and accordingly as a co-applicant he executed document. Brother of the plaintiff lodged complaint before the Subramanyapura Police Station and police have submitted B report on the ground that 20 O.S. No.25250/2012 the signatures are that of the plaintiff and also that of the elder brother of the plaintiff by name Ashok Kumar. The plaintiff also lodged a complaint as against defendants before the J.P.Nagar Police Station for the offence punishable u/sec.468, 471, 420 of IPC. There also report was filed holding that complaint is false. The transaction indicated under the GPA is genuine with full consciousness of plaintiff and his elder brother and the transaction is concluded transaction. He approached defendant No.1 and 2 and they were possessing 2 documents i.e., GPA and Agreement to sell. The plaintiff himself executed the said agreement to sell and it was executed in the presence of two witnesses by name Shashidhar and Venkatesh Babu. Thereafter the plaintiff executed the GPA for the purpose of conveying title. The consideration was fixed for Rs.26 lakhs and the plaintiff received the same. He filed civil suit in O.S.No.6432/2009 as 21 O.S. No.25250/2012 against the occupants Rame Gowda and Manjunath in respect of suit premises. He also filed O.S.No.2587/2010 as against Bharathi Co-operative Credit Society Limited seeking to return the documents after receiving the balance loan amount which was due from the plaintiff. In the said suits the plaintiff herein has not stated anything which is stated in the present plaint.
23. The plaintiff Sunil Kumar in order to prove his case got examined himself as PW.1 and during the course of evidence he filed his chief examination affidavit reiterating the plaint averments. He has produced and got marked in all 32 documents as per Ex.P1 to P32. Ex.P1 is the certified copy of registered sale deed dated 27.03.1972, Ex.P2 is the original registered sale deed dated 14.02.1979, Ex.P3 is the original registered sale deed dated 23.02.2004, Ex.P4 is the Tax receipt, Ex.P5 is the Khatha certificate dated 11.08.2006, Ex.P6 is the Khatha extract dated 22 O.S. No.25250/2012 11.08.2006, Ex.P7 is the Intimation letter dated 30.09.2004, Ex.P8 is the Development charges endorsement dated 18.01.1998, Ex.P9 is the Receipt for having paid development charges dated 21.01.1998, Ex.P10 is the Tax paid receipts, Ex.P11 is the Electricity bills and receipts, Ex.P12 is the Water bill with receipts, Ex.P13 is the Plan and licence, Ex.P14 is the Receipt for having paid Rs.3,50,000/- to Bharathi Co-operative Bank, Ex.P15 is the Registered Discharge note dated 12.09.2018, Ex.P16 is the E.C. Ex.P17 is the Certified copy of the Judgment in O.S.No.6432/2009, Ex.P18 is the Certified copy of the Judgment in O.S.No.2587/2010, Ex.P19 is the Certified copy of mortgage deed dated 05.10.2006, Ex.P20 is the Original pass book of co-operative society, Ex.P21 is the Original receipt dated 22.02.2015, Ex.P22 to 24 are the Aadhar card of plaintiff, Monisha S.K., and Sonisha S.K., Ex.P25 is the Original ration 23 O.S. No.25250/2012 card, Ex.P26 is Invitation cover, Ex.P27 is the Invitation card, Ex.P28, 28(a) & (b) are the three original electricity bills, Ex.P29, 29(a) & (b) three original electricity receipts, Ex.P30, 30(a) to (c) four tax paid receipts, Ex.P31, 31(a) to (h) are nine original water bills, Ex.P32, 32(a) to (h) are nine original water receipts,
24. On the contrary the defendants No.1 and 3 in order to prove their case got examined themselves as Dw.1 and 2. During the course of evidence they have filed their chief examination affidavits reiterating their respective written statement contentions. Dw.1 has not produced any document. DW.2 has produced in all 16 documents and got marked as Ex.D1 to 16. Ex.D1 is the copy of FIR & complaint in Cr.No.503/2009 dated 29.09.2009, Ex.D2 is the GPA, Ex.D3 is the certified copy of sale deed dated 06.02.2009, Ex.D4 is the 24 O.S. No.25250/2012 sale deed dated 06.02.2009, Ex.D5 is the Uttara Pathra of BBMP, Ex.D6 is the khatha certificate, Ex.D7 is the khatha extract, Ex.D8 is the endorsement issued by the BESCOM, Ex.D9 is the letter dated 03.07.2009 issued by the Bharathi Co-operative Credit Society Limited, Ex.D10 is the cheque, Ex.D11 & 12 are tax paid receipts, Ex.D13 is the bank challan, Ex.D14 is the certified copy of order sheet in Crime No.580/2009, Ex.D15 is the certified copy of B report in Crime No.580/2009, Ex.D16 is the encumbrance certificate.
25. During the course of cross-examination, PW.1 deposed that Ashok Kumar is his elder brother. Himself and his brother are having cordial relation, he has not taken any action as against his brother. He is residing in first floor and his brother is residing in the ground floor at the address shown in the cause title. He admits that Ex.D1 is copy of FIR in Crime 25 O.S. No.25250/2012 No.503/2009 of Subramanyapura Police Station, according to him Ex.D2 is the forged document. He denied that police have sent said GPA for expert opinion and it was confirmed that signature appeared on Ex.D2 is belongs to him. Another document certified copy of sale deed dated 06.02.209 was also marked through PW.1 as Ex.D3 and according to this defendant No.1 the contents of Ex.D3 are false and it is also forged document.
26. On perusal of cross-examination of DW.1 he deposed that himself, Devaraja, Shashi and R.Ashok Kumar were doing real estate transactions since several days. However, he denied that he has received Rs.27 lakhs as commission in respect of house sale. He denied that when the brother of plaintiff asked for his share he has assaulted him. He denied that he has kidnapped elder brother of plaintiff. He denied that he has 26 O.S. No.25250/2012 illegally obtained signature of elder brother of plaintiff to the document.
27. In his further cross-examination he deposed that he knows plaintiff The plaintiff executed GPA as he was having financial problem and urgent necessity of money. He has paid Rs.26 lakhs to the plaintiff. He paid the said amount in cash and at that time the brother of the plaintiff as well as the 2 nd defendant were present. He do not know who are the witnesses to GPA, the plaintiff has raised objection for receiving the original documents from Bharathi Co-operative Society.
28. On perusal of the cross-examination of DW.2 he deposed that he came to know about plaintiff through defendant No.1. The 2nd defendant is the elder brother of defendant No.1. The defendant No.1 & 2 are doing real estate business. In the year 2007 the defendant No.1 was executed with GPA and the 27 O.S. No.25250/2012 defendant No.1 executed sale deed as GPA holder. The plaintiff was the owner of suit schedule property. The defendant No.1 & 2 are witnesses to his sale deed. He has paid Rs.26 lakhs sale consideration to the defendant No.1. He paid Rs.11 lakhs as cash and Rs.15 lakhs through cheque. It is the plaintiff who is in possession of suit schedule property. He also filed suit for evicting the plaintiff from the suit property.
29. In his further cross-examination he deposed that the plaintiff purchased the suit schedule property from one Nagachari. There was loan of Rs.2,97,000/- in respect of the suit schedule property. The plaintiff is residing in the suit schedule property. He is not doing real estate business. He denied that in respect of sharing of amount there was quarrel between himself and the brother of the plaintiff. He denied that at that time they have obtained signatures of said Ashok Kumar on 28 O.S. No.25250/2012 blank stamp paper. The said Ashok Kumar also lodged criminal complaint before the Subramanyapura Police Station. However, the same is closed. After getting sale deed he applied before Bharathi Co-operative Society asking for the original documents of suit property. At that time the said society has stated that the plaintiff herein has raised objection for the same. The said society has not given documents. He also filed O.S.No.2587/2010 seeking direction to the plaintiff to handover the original documents. The said suit was came to be dismissed. He also filed O.S.No.6432/2009. The said suit was also came to be dismissed. He also admits that the plaintiff has given police complaint as against the defendant No.1 to 3 before the JP Nagar Police Station. However the police have submitted B final report. The said B report was accepted by the court. He denied that the plaintiff has challenged the order of accepting B report 29 O.S. No.25250/2012 in Crl.Rev.Pet. No.604/2014. He pleaded his ignorance that the said Crl.Rev.Pet. No.604/2014 was came to be allowed.
30. In the case on hand it is not in dispute that the plaintiff was the absolute owner of the suit schedule property. He purchased the said property from his vendor Nagachari. Ex.P1 is the sale deed in respect of suit schedule property executed by Vendor's vendor of the plaintiff. Ex.P2 is the sale deed executed by Nagachari in favor of plaintiff. Hence the sale deed Ex.P1 and Ex.P2 are not in dispute.
31. It is also not in dispute that the plaintiff is in possession of suit schedule property even today. During the course of cross examination DW2 has clearly admitted that the plaintiff is in possession of suit schedule property.
At page 9 of his cross examination DW2 admits as follows ನಾನು ಕ್ರಯಕ್ಕೆ ಪಡೆದ ಸ್ವತ್ತಿನ ಸ್ವಾಧಿನದಲ್ಲಿಲ್ಲ. ಅದರಲ್ಲಿ ವಾದಿ ಸ್ವಾಧಿನದಲ್ಲಿದ್ದಾರೆ. 30
O.S. No.25250/2012
32. However the argument of the defendant is that the plaintiff has executed GPA in favour of defendant No.1 as per Ex.D2. It is the contention of the defendants that the defendant No.1 as a Power of attorney holder of plaintiff executed registered sale deed in respect of suit schedule property in favour of defendant No.3 as per Ex.D4.
33. It is also the contention of the defendant No.3 that the defendant No.1& 2 were in possession of 'agreement to sell' and the said document was also executed by plaintiff in favour of defendant No.1 & 2. The plaintiff personally executed GPA for the purpose of conveying title and interest of property and in the agreement it is clearly stated that the plaintiff agreed to sell the said property for a consideration of Rs.20 lakhs and time limit of 18 months was fixed to get the sale deed. Accordingly 31 O.S. No.25250/2012 on the basis of Powe of Attorney the defendant No.1 executed registered sale deed as per Ex.D4 to the defendant No.3.
34. On perusal of the entire case of the plaintiff and defendant the plaintiff has categorically denied the execution of GPA and also giving power of conveyance to the defendant No.1. Hence, very document Ex.D2 under which the entire transactions of sale as per Ex.D4 held on 06.02.2009 itself is in dispute. Accordingly, the party who asserts the existence of GPA by the plaintiff has to prove the said fact by placing cogent and convincing evidence. At this stage it is necessary to go through Sec.101 of Indian Evidence Act. The same is extracted below for easy reference.
Section 101. Burden of proof.
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence 32 O.S. No.25250/2012 of any fact, it is said that the burden of proof lies on that person.
35. It is the plaintiff approached this court with specific case that he is absolute owner in possession of suit schedule property. On the contrary the defendant No.1to 3 asserts that the plaintiff executed GPA as per Ex.D2 in favour of defendant No.1conferring power of conveyance of suit schedule property and on the basis of said GPA defendant No.1 executed sale deed in favour of defendant No.3 as per Ex.D4. The defendant No.1 & 2 are claiming existence of Ex.D2 GPA and defendant No.3 in turn is seeking his title on the basis of Ex.D4 sale deed. At this stage it is necessary to go through Sec.102 of Indian Evidence Act and the same is extracted below for ready reference.
Section 102. On whom burden of proof lies.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
33
O.S. No.25250/2012
36. In the case on hand the burden of proving existence of GPA as per Ex.D2 is lies on defendants No.1 to 3. If the defendants discharges their burden then the burden to prove contrary shifts on the other side. In the case on hand when the plaintiff has denied the very existence of GPA and so also the execution of sale deed Ex.D4 it is the defendants who are relying on said document have to establish the due execution of said Ex.D2.
37. The defendants in this regard have relied upon copy of order sheet in Crime No.580/2009 marked as Ex.D14. It is necessary to note that in the said proceedings the court has ordered to issue notice to the complainant as the concerned police have submitted B final report in the said case. The B final report is also marked at Ex.D15. It is pertinent to note that neither the defendants nor the plaintiff have produced the 34 O.S. No.25250/2012 opinion/report given by the Expert in respect of said Ex.D2 which is shown in the said Ex.D15 "B" report.
38. It is also necessary to note that when there is a specific denial of Ex.D2-GPA the defendants are bound to prove the said document as per the provisions of Indian Evidence Act. The defendants were having every option to get compare the signature of plaintiff on the said Ex.D2 with that of admitted signatures of plaintiff. However, none of the defendants have taken least risk to get it compared.
39. On careful consideration of Ex.D2 the recitals of the said document shows that it is an unregistered GPA executed on 12.12.2007. In the said document the executant has confirmed certain powers to the defendant No.1. Clause 2 of the said document confers power of sale- conveyance. The power to take the documents from the Bharathi Co-operataive Society Ltd., was 35 O.S. No.25250/2012 also given and it is stated that the said power of attorney is irrevocable. It is pertinent to note that the counsel for the plaintiff in this regard has relied upon the following decisions:
1) (2012) 1 SCC 656 (Suraj Lamp and Industries Private Ltd., through director Vs. State of Haryanan & another.
2) W.P.No.20850/2022 dated 16.11.2022 of Hon'ble High Court of Karnataka reported in 2022 live law (Kar)
468.
3) Civil Appeal Nos.6989-6992 of 2021 in between Kewal Krishan Vs. Rajesh Kumar & Ors. ect.
4) Civil Appeal No.2929/2022 (Veena Singh (Dead) Through LR Vs. The District Registrar/Additional Collector (F/R) & another.
5) ILR 2016 KARNATAKA 842 In the High Court of Karnataka at Bengaluru (Syed Basheer Malik and Ors. Vs. Jameela Begum and Ors.)
6) (2002) 8 SCC 87 (K.G.Premshanker Vs. Inspector of Police & another) 36 O.S. No.25250/2012
7) AIR 2002 SC 3372 (K.G.Premshanker Vs. Inspector of Police & another)
8) (2004) 1 SCC 438 (Shanti Kumar Panda Vs. Shakuntala Devi)
9) (2009) 5 SCC 528 (Syed Askari Hadi Ali Augustine Imam and another Vs. State (Delhi Administration) & another)
10) (2009) 13 SCC 729 (Vishnu Dutt Sharma Vs. Daya Sapra
11) MANU/SC/0192/1994 Supreme Court of India Civil Appeal No.994/1972 (S.P.Chengalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by LRs and Ors.
12) MANU/KA/7390/2007 High Court of Karnataka at Bengaluru Regular First Appeal No.1208/2007 (Vasanthi And Ors. Vs. Jayashree V. Shetty)
40. On the contrary the counsel for defendants have relied upon the following Judgments:
1) AIR 2018 SC 3080 (Siddagangaiah (D) Thr. LRs Vs. N.K. Giriraja Shetty (D) Thr. LRs. 37
O.S. No.25250/2012
2) AIR 2012 SC 1727 (Maria Margarida Sequeria Fernandes and others Vs. Frasmo Jack De Sequeria (Dead) through LRs
3) AIR 1976 SC 744 (Udhav Singh Vs. Madhav Rao Scindia)
4) AIR 2012 SC 3912 (The Church of Christ Charitable Trust and Educational Charitable society Represented by its Chairman Vs. M/s Ponniamman Educational Trust Represented by its Chair Person/Managing Trustee.
5) AIR 2005 SC 3401 (State of Rajasthan and others Vs. Basant Nahata
6) AIR 2011 Madras 66 (M/s. Latif Estate Line India Ltd. Vs. Mrs. Hadeeja Ammal and others)
7) AIR 1965 SC 430 (K.J.Natha Vs. S.V. Maruthi Rao and others
8) 2017 (1) SCC 599 (Ghanshyam Sarda Vs. Shashikant Jha, Director, M/s J.K. Jute Mills Co. Ltd.)
9) AIR 1993 SC 957 (Vinay Krishna Vs. Keshav Chandra and another) 38 O.S. No.25250/2012
10) AIR ONLINE 2022 SC 65 (Amar Nath Vs. Gian Chand)
11) AIR 2003 Gujarat 294 (Bhagwanbhai Karamanbhai Bharvad Vs. Arogya Nagar Co-operative Housing Society Ltd., and others)
12) AIR 2007 Delhi 147 (Kamala Rani And Ors. Vs. M/s Texmaco Ltd.)
13) AIR 2008 Bombay 81 (Bank of India Vs. Allibhoy Mohammed and Others)
41. I have carefully gone through the decisions relied on by the plaintiff and defendants. It is well settled proposition of law that title cannot be transferred of immovable properties through unregistered documents including Agreement to Sell and the Power of Attorney.
42. As could be seen from Section.17 and 49 of the Indian Registration Act and Sec.54 of the Transfer of Property Act without Registration of the document no right, tiltle or interest can be conferred with respect to an immovable property. 39
O.S. No.25250/2012
43. In the case on hand on perusal of the POA Ex.D2 Executant has not received any consideration under the said Ex.D2. The counsel for the defendants argued that there is a presumption in respect of due execution of GPA when it is executed before the Notary advocate. It is necessary to note that DW.1 deposed that he has paid Rs.26 lakhs to the plaintiff after the execution of GPA. However, the said fact is not found place in Ex.D2. There is no evidence by the defendants to prove that the plaintiff was paid with consideration of Rs.26 lakhs. That apart if the sale consideration was fixed at Rs. 26 lakhs then there was no necessity to pay the loan dues by the defendant No.3 to the Bharathi Co-operative Bank. The plaintiff being owner of the suit schedule property categorically denied the execution of GPA and contended that he had no necessity to sell the suit schedule property. Hence the defendant cannot contend 40 O.S. No.25250/2012 that Sec.85 of the Evidence Act is applicable. The defendant has to prove the due execution of said Ex.D2. Hence the decision relied on by the defendants reported in AIR 2007 Delhi 147 (Kamala Rani And Ors. Vs. M/s Texmaco Ltd.) and AIR 2008 Bombay 81 (Bank of India Vs. Allibhoy Mohammed and Others) are not helpful for the defendants.
44. Though the defendants contended that a sum of Rs.26 lakhs was paid to plaintiff by defendant No.1 on execution of Ex.D2 in favor of defendant No.1 is not corroborated by any evidence. The sale agreement contended by defendant No.3 is also not proved. Hence it can be held that the Power of attorney is not coupled with any interest.
45. In the case on hand though the defendant No.3 taken a contention that an "agreement to sell" was also executed by the plaintiff to the defendant, no such document to show that 41 O.S. No.25250/2012 there was a sale agreement between plaintiff and defendant No.1 is produced on record.
46. The defendant No.3 also contended in para No.16 of his written statement that the said sale agreement was got typed by the plaintiff on the stamp paper standing in the name of defendant No.1 & 2 and the said stamp papers were executed in the presence of 2 witnesses by name Shashidhar and Venkatesh Babu the said document is notarized before the notary by name Sri. V. Ranga Ramu. However, the defendant has not examined the said witnesses or the said Notary in whose presence the said sale agreement was executed. Even the witnesse of said GPA were also not examined.
47. It is also pertinent to note that the witnesses to the Ex.D2 are the best witnesses to the entire case of the defendant 42 O.S. No.25250/2012 No.1 to 3. The said witnesses are not brought before the court by the defendants.
48. It is not the case of the defendants that the witnesses by name Shashidhar and Venkatesh Babu who have affixed signature to the sale agreement and also to Ex.D2 GPA are dead and are not available to the process of the court. It is also necessary to note that the defendants were having opportunity to examine the said witnesses who have affixed their signatures to the alleged Ex.D2 GPA. However, no efforts or steps was taken by the defendants to examine the said witnessess. Under such circumstances the defendants who are having bounden obligation to prove the Ex.D2 have not examined the said witnesses and proved the due execution on Ex.D2.
49. In the case on hand the executants of Ex.D2 i.e., the alleged R.Sunil Kumar who is none other than the plaintiff is 43 O.S. No.25250/2012 very much alive and he has categorically denied the execution of Ex.D2. Under the circumstances it is for the defendants to prove due execution of said GPA and also confirming power of conveyance to the defendant. The defendants except pleading that there was a sale agreement have not produced the said sale agreement document or its copy and not proved the said sale agreement contended by the defendant No.3.
50. Though the defendants taken contention that plaintiff has executed GPA for purpose of conveying title have not proved the due execution of said GPA by the plaintiff. The GPA hence can be held that it is not coupled with any interest. Hence, the due execution of very GPA is itself not proved by the defendants. The counsel for the defendant No3 has relied on the decision reported in AIR 2018 SC 3080. Wherein it is held as follows:
44
O.S. No.25250/2012 (A)Civil P C (5 of 1908) O-21 R-90, O-21 R-92.
O-6 R-4,S.47 S.11 Auction sale-application for setting aside, dismissed in default for appearance- suit for declaration of title and possession filed by plaintiff after confirmation of sale suppressing dismissal of application - plaintiff claiming to be bonafide purchaser not questioning auction so held by court on ground of fraud or material irregularity - finding of Appellate court and High court with respect to fraud and collusion of decree holder and judgment debtor in court auction so held, erroneous- Auction purchase made by decree holder attained finality - dismissal of application would operate as bar for entertaining of fresh suit.
51. The facts and circumstances of the case on hand and the facts and circumstances of the above case is entirely different and the dictum laid down in the above case with due respect to the dictum will not be help ful to the defendants. I have also gone through the dictum laid down in the cases relied on by the 45 O.S. No.25250/2012 defendants. With due respect to the dictum laid down in the said cases the facts and circumstances of the case on hand and the facts and circumstances involved in the said cases are entirely different and the same hence are not helpful to the defendants.
52. Under the circumstances the defendant No.1 will not get any right to convey the suit schedule property which stands in the name of plaintiff. Admittedly the plaintiff is owner of the suit schedule property and the due execution of GPA as per Ex.D2 in favor of Defendant No.1 is not proved. When that being the case the defendant No.1 had no authority or power to sell the suit schedule property. When the defendant No.1 had no power what so ever to sell the suit schedule property the defendant No.3 will not get any title to the suit schedule property. As the plaintiff not received any consideration in 46 O.S. No.25250/2012 respect of said sale the alleged sale as per Ex.D2 is not at all binding on plaintiff and the same is liable to be cancelled. Accordingly, I have answered issue No. 1 & 2 in the affirmative.
53. Issue No.3:
It is admitted that the plaintiff is in possession of suit schedule property and the same is admitted by DW.2 in his cross-examination. The defendant No.3 herein has filed O.S.No.6432/209 as against the occupants by name Rame Gowda and Manjunatha seeking the relief of permanent injunction. The defendant No.3 has pleaded that the plaintiff is also made party to the said proceedings. The defendant no.3 further pleaded that another suit in O.S.No.2587/2010 is also filed by him seeking relief of permanent injunction claiming that he became owner by virtue of the sale deed and sought for return of original documents from the bank. The plaintiff has produced the copy of 47 O.S. No.25250/2012 Judgment in O.S.No. 6432/2009 and O.S.No.2587/2010 as per Ex.P17 and 18 and the same shows that said both suits are came to be dismissed. There is no other documents produced by the defendants to show that they have preferred appeals as against the said judgments. The defendant No.3 has not acquired title to the suit schedule property. The defendant No.3 is not in possession of the suit schedule property. All the above facts clearly goes to show that the defendant No.3 having no right over the suit property is claiming possession of the suit schedule property and the same is nothing but interference to the possession of the plaintiff over suit schedule property. Accordingly, I have answered issue No.3 in the affirmative.
54. Issue No.4:
The plaintiff proved that he is absolute owner of suit schedule property and he is in possession of the same and the 48 O.S. No.25250/2012 GPA marked at Ex.D2 is created and accordingly the sale deed executed on the basis of said GPA by the defendant No.1 in favour of defendant No.3 is requires to be canceled. Accordingly, the plaintiff is entitled to the suit relief as prayed for. Hence, I have answered issue No.4 in the affirmative.
55. Issue No.5:- In view of the reasoning given above, I proceed to pass the following:-
O R D E R The suit filed by the plaintiff as against the defendants is hereby decreed with costs.
The plaintiff is declared as absolute owner in possession of suit schedule property.
The sale deed dated 06.02.2009 executed by defendant No.1 in favour of defendant No.3 is held to be canceled.
The defendants and their men are hereby restrained by way of permanent injunction from interfering with peaceful possession and 49 O.S. No.25250/2012 enjoyment of plaintiff over the suit schedule property.
The suit of plaintiff for damages is dismissed in view of Memo of plaintiff dated 20.11.2024.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed and computerized by her and after corrections pronounced by me in the open court on this the 04th day of February, 2025) Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2025.02.21 15:20:16 +0530 (Anitha N.P.) LXXIII Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74) 50 O.S. No.25250/2012 A N N E X U R E
1. List of witnesses examined for the plaintiffs side:-
P.W.1 : R.Sunil Kumar
2. List of documents exhibited for the plaintiff's side:-
Ex.P.1 : Certified copy of registered sale deed dated 27.03.1972 Ex.P.2 : Original registered sale deed dated14.02.1979, Ex.P.3 : Original registered sale deed dated 23.02.2004, Ex.P.4 : Tax demand register extract in respect of suit property for the year 204-05 Ex.P.5 : Khatha certificate dated 11.08.2006 Ex.P6 : Khatha extract dated 11.08.2006 Ex.P7 : Intimation letter dated 30.09.2004 Ex.P8 : Development charges endorsement dated 18.01.1998 Ex.P9 : Receipt for having paid development charges dated 21.01.1998 Ex.P10 : Tax paid receipts (6 in Nos.) 51 O.S. No.25250/2012 Ex.P11 : Electricity bills and electricity receipts (7in Nos.), Ex.P12 : Water bill with receipts (2 in Nos.) Ex.P13 : Plan and license Ex.P14 : Receipt for having paid Rs.3,50,000/- to Bharath Co-operative Bank Ex.P15 : Discharge note dated 12.09.2018 Ex.P16 : E.C.(3 in Nos.) Ex.P17 : Certified copy of the Judgment passed in O.S.No.6432/2009 Ex.P18 : Certified copy of the Judgment passed in O.S.No.2587/2010 Ex.P19 : Certified copy of mortgage dated 05.10.2006 Ex.P20 : Original pass book of co-operative society Ex.P21 : Original receipt dated 22.02.2015 Ex.P22 : Original Aadhar card Ex.P23 : Original Aadhar card of Monisha S.K. Ex.P24 : Original Aadhar card of Sonisha S.K., 52 O.S. No.25250/2012 Ex.P25 : Original ration card Ex.P26 : Invitation cover Ex.P27 : Invitation card Ex.P28 : Three original electricity bills 28(a) & (b) Ex.P29 : Three original electricity receipts 29(a) & (b) Ex.P30 : Four tax paid receipts 30(a)to(c) Ex.P31 : Nine original water bills, 31(a)to(h) Ex.P32 : Nine original water receipts 32(a) to (h)
3. List of witness examined for the defendants side:-
D.W.1 : T.R.Yogananda D.W.2 : B.N.Jai Kumar
4. List of documents exhibited for defendants side:-
Ex.D.1 : Certified copy of FIR & complaint in Cr.No.503/2009 dated 29.09.2009 53 O.S. No.25250/2012 Ex.D.2 : GPA Ex.D.3 : Certified copy of sale deed dated 06.02.2009, Ex.D.4 : Absolute sale deed dated 06.02.2009 Ex.D.5 : Uttara Pathra Ex.D.6 : Khatha certificate Ex.D.7 : Khatha extract Ex.D.8 : Endorsement issued by the Bangalore Electricity Supply Company Limited Ex.D.9 : Letter dated 03.07.2009 issued by the Bharathi Co-operative Credit Society Limited Ex.D.10 : Cheque Ex.D11&12 : Tax paid receipts Ex.D13 : Bank challan Ex.D14 Certified copy of order sheet in Crime No.580/2009 Ex.D15 : Certified copy of B report in Crime No.580/2009, Ex.D16 Encumbrance certificate. Digitally signed by ANITHA
ANITHA NANJANAGUDU
NANJANAGUDU PARASHIVAMURTHY
PARASHIVAMURTHY
Date: 2025.02.21
15:20:05 +0530
(Anitha N.P.)
LXXIII Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74)