Bangalore District Court
Ferns City Plot Owners Association vs Ferns Builders And Developers on 21 January, 2022
IN THE COURT OF THE IV ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-21)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge & C/c. IV ACC &
SJ., Mayo Hall, Bengaluru
Dated this the 21st day of January 2022
O.S.No.25588/2010
Plaintiff:- Ferns City Plot Owners Association
(FCPOA), Having its Regd. Office at
Ferns City Club House,
Doddanekkundi, Marathahalli,
Bengaluru 560 037
Represented by its Ex-Officio
Officers and Authorized
Representatives:-
a) Dr.K.Srinivasan,
President of FCPOA,
Aged about 64 years,
Son of Late S.Kalyanasundaram,
Residing at No.219, Ferns City,
Off Ring Road, Doddanakundi,
Marathahalli, Bengaluru 560037
b) Sri.G.Harihara Nandanan
2
OS No.25588/2010
Vice President of FCPOA
Aged about 73 years,
Son of Late Govinda Pillai,
Residing at No.342, Ferns City,
Off Ring Road, Doddanakundi,
Marathahalli, Bengaluru 560037
[By Sri.PMV-Adv.]
Vs.
Defendants:- 1. Ferns Builders and Developers,
No.95, Amar Jyothi Layout,
Intermediate Ring Road, Domlur
Bengaluru 560 071,
Represented by its Partner Mr.
Austin Roach
2. Smt.Vimalamma,
W/o Late Sri.Venugopala Reddy
Aged about 54 years,
3. Sri.Bhaskar Reddy,
S/o Late Sri.Venugopala Reddy
Aged about 36 years,
4. Sri.N.R.Parthasarathy,
S/o Late N.H.Ramaiah Reddy
Aged about 58 years,
5. Sri.N.R.Somashekar,
3
OS No.25588/2010
S/o Late N.H.Ramaiah Reddy
Aged about 54 years,
6. Sri.N.R.Lakshminarayanan,
S/o Late N.H.Ramaiah Reddy
Aged about 49 years,
Defendants 2 to 6 are Residing
at No. Doddenakahalli, K.R.
Puram Hobli, Bengaluru East.
7. Sri.R.Nagaraj,
Son of Late Sri.M.K.
Radhakrishna Reddy, Aged
about 51 years, Residing at No.
80, 1st Cross, 2nd Main, Defence
Colony, Indiranagar, Bengaluru
560 038.
8. Smt.H.G.Sheela,
W/o. Sri.R.Nagaraj,
Aged about 41 years, Residing
at No. 80, 1st Cross, 2nd Main,
Defence Colony, Indiranagar,
Bengaluru 560 038.
[D.1 and 7 : By Sri.L.A-Adv; D.2
to 6: By Sri.GAS-Adv; and D.8:
By Sri.MRK-Adv]
4
OS No.25588/2010
Date of Institution of suit: 08.04.2010
Nature of the Suit (Suit for Declaration and
Pronote, Suit for Declaration Injunction
and Possession, Suit for
Injunction, etc.):
Date of Commencement of 02.07.2014
recording of evidence:
Date on which the Judgment
was pronounced: 21.01.2022
Total Duration:
Years Months Days
11 09 13
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge, & C/c.IV ACC & SJ.,
Mayo Hall, BENGALURU.
5
OS No.25588/2010
JUDGMENT
The Plaintiff-Association has filed this suit against the defendants 1 to 8, for the relief of declaration that the Sale Deed dtd. 13.04.2007 purported to have been executed by the defendant No.7 as Power of Attorney Holder of defendants 2 to 6 in favour of defendant No.8 in respect of the suit schedule property is null and void and for consequential relief of permanent injunction restraining the defendants 1 to 8 from interfering with plaintiff's peaceful possession and enjoyment of suit property and also from crating third party interest in relation of the common areas, open spaces, civic and other facilities within the Ferns City Layout and for costs.
2. Brief facts of the case of the Plaintiff are as under:-
6
OS No.25588/2010 The Plaintiff is a Society registered under the Karnataka Societies Regn. Act, 19609 with an object of protecting the collective interest of the Plot owners, members and residents of Ferns City a Layout formed by Defendant No.1. The members of the society are the Plot owners/residents of the Layout of Ferns City. Defendant No.1 is a partnership form engaged in the business of property development and during the year 1999 defendant No.1 promoted a scheme for development of converted lands in various Survey numbers at Doddenakundi, K.R.Puram Hobli, Bengaluru East Taluk by forming residential layout. The said layout was to be developed in three Phased Ferns City I with Site Nos. 1 to 170 Ferns City II with Site Nos. 200 to 293 and Ferns City III with site Nos. 294 to 362.
In view of the assurance, the members of the Plaintiff entered into agreements with defendant No.1 for 7 OS No.25588/2010 purchase of their plots and later the partners of the defendant No.1 as the constituted attorneys of the land owners executed Sale Deeds to each of the purchasers. For completeness, defendant No.1 has failed to provide various amenities/facilities as promised as on today and the plaintiff is pursuing the said issue separately with defendant No.1. On handing over of the layout and accounts of the Ferns City, entire management of the Ferns City including open areas in the layout are being managed by the plaintiff without any interference of the defendant no.1. Entire layout Ferns City was surrounded by a compound wall with its entrance situated off the Mahadevapura Ring Road. At the entrance of the layout an open area of land measuring about 2595 sq. feet was left as open space of the utility of the plaintiff. The said vacant land is mentioned as schedule property of this suit. 8
OS No.25588/2010 The suit schedule property is a part of the layout was the only lung space available for the entire layout in addition of being used for visitors parking, parking for residents visiting the club house, conducting society drill, accommodating the security personnel, storing of items required for the layout and for also to provide for installation of generators for supply of back up power to the common area. That the suit property is in possession of the plaintiff Association since the day of handing over of the layout to the Association on 18.05.2003. Defendant No.1 wrote a letter dtd. 07.11.2003 to the plaintiff and confirmed that there are only two unsold plots i.e., 343 and 361 and the maintenance fees about the said plots will be paid by the defendant No.1.In September 2008 to the shock and dismay the plaintiff received a cheque in the name of the Plaintiff for Rs.7266 towards the annual 9 OS No.25588/2010 subscription for the year 2008-09 for plot no.171. Thereafter, the plaintiff obtained a sale deed dtd. 13.04.2007 and came to know that the defendant no.7 as Power of Attorney Holder of defendant Nos.2 to 6 sold the suit schedule property in favour of his wife defendant No.8. No such site with No.171 was ever formed in the Ferns City and the suit schedule property was shown as open area in the Layout plan. And site no.171 does not appear in the list of plot owners submitted and confirmed by the defendant No.1 to the plaintiff on 10.02.2005. Hence the present action of the defendant no.7 and 8 with ulterior motives of covering the common utility area into a plot and thereby making unlawful gain to themselves and deprive the plaintiff the utility space which is only lung space available in the layout. Hence the plaintiff Association has filed this suit seeking the reliefs. 10
OS No.25588/2010 3. On service of summons defendant No.1 to 8 appeared in the case. But, Defendant Nos.1, 7 and 8 have filed separate written statement and contested the suit. Defendants 2 to 6 through engaged the counsel did not file written statement and contest the suit.
4. The brief facts of the written-statement filed by the defendant Nos.1, 7 and 8 in common are as under:-
The suit is misconceived, untenable, unfounded and liable to be dismissed in limine. The plaintiff has misrepresented various facts and played fraud by suppressing various material facts and filed the suit for illegal gains and to serve their ulterior purposes. The suit as brought out by the plaintiff with a sole intention of harassing the defendants and with 11 OS No.25588/2010 speculative purposes of extracting money unrighteous from it. Defendants have denied the ownership of the Plaintiff over the suit schedule property. That the plaintiff is aware of the fact that the suit property does not form part of the Layout of Ferns City and the schedule property and other portions which are not delineated and are not numbered have been retained by the original owners of the lands in which the Fern City is formed. Hence, the question of handing over of the suit property to the plaintiff by the defendant No.1 or the plaintiff possession and enjoying the suit property does not arise at all. Defendants 2 to 6 had a valid legal right, title and interest over the suit property and the suit property enjoyed absolute disposition at the hands of the 7 th defendant and in exercise of such rights, 2nd to 6th defendants through their General Power of Attorney Holder -7th defendant 12 OS No.25588/2010 have sold the schedule property in favour of 8th defendant under the Sale Deed dtd. 13.04.2007 and the same is a document applicable 'in rem', and the plaintiff cannot have any grievance in this regard. Though the plaintiff had knowledge of the sale deed dtd. 13.04.2007, it waited for nearly three years and at the end of the last week of three years from the date of execution of the Sale Deed I..e, 8.4.2000 filed this suit for speculative purposes and with dishonest intention of grabbing the suit property. The plaintiff and its members and its visitors have no right to park their vehicles in the suit property which belongs to the land owners. If the plaintiffs and its members are using the suit property claiming to be common area of the layout is absolutely illegal and cannot claim right over such area by any stretch of imagination. Plaintiff has no concluded right to seek enforcement against 13 OS No.25588/2010 the defendants and plaintiff cannot be entitled for any injunction. The open areas belong to the land owners and defendant No.1 had no authority to make over the open areas in the layout either to the plaintiff or any third party. The said open area was not handed over to the defendant No.1 by its land owners. The schedule property was not belongs to the defendant No.1 till today. Site No.171 does not belong to defendant No.1 at all. The defendants 2 to 6 having valid legal right, title, interest over the suit property and the defendants 2 to 6 through defendant No.5 as a GPA holder have sold the suit property in favour of of defendant under the Sale Deed dtd. 13.04.2007 and thus the plaintiff cannot have grievance in this regard. Defendant No.8 is in possession of the suit schedule property. Hence the suit of the Plaintiff is not maintainable and liable to be dismissed. 14
OS No.25588/2010
5. In support of the plaintiff's case, Vice President of the plaintiff Association got examined as PW.1, but later his evidence has been discarded and a member of the plaintiff Association has been examined as PW.2 and got marked in all 19 documents as Ex.P.1 to P.19. On behalf of defendants, defendant No.7 got examined as DW.1 and got marked Ex.D.1 to 23 documents.
6. Heard arguments and also perused written arguments filed by the defendant Nos.1 and 7. But, Learned counsel for defendant No.8 has not submitted arguments.
7. The following issues have been framed in the case:-
1) Whether the plaintiff proves that the Sale Deed dtd. 13.04.2007 purported 15 OS No.25588/2010 to have been executed by defendant No.7 as General Power of Attorney holder of the defendant No.2 to 6 in favour of defendant No.8 in respect of the suit property is null and void?
2) Whether the plaintiff is entitle for permanent injunction?
3) Whether suit is valued properly and court fee paid on the plaint is sufficient ?
4) What order or decree?
8. For the reasons stated in the subsequent paragraphs, I answer above issues as follows:-
ISSUE NO.1 :- In the Affirmative
ISSUE NO.2 :- In the Affirmative
ISSUE NO.3 :- In the Affirmative
ISSUE NO.4 :- As per final order
for the following
16
OS No.25588/2010
REASONS
9. Issue No.1:- Plaintiff claims that it is Owners Association of Ferns City Plot Owners and the members of the said Association are the owners of the plots/residents of the Layout -Ferns City. This fact is actually not in serious dispute. Contesting defendants claim ignorance of the fact of the plaintiff being Association of the owners of the plots of the Ferns City. However, their own letters to the plaintiff admits the said fact. Further, the defendant No.1 is a Partnership Firm which is engaged in the business of development of the property. Defendant No.7 is one of the Partners of the Defendant No.1 Firm. Defendants 2 to 6 were the owners of the lands in which the Ferns City Layout has been formed. These facts are also not in dispute. According to the plaintiff, Ferns City Layout has been 17 OS No.25588/2010 formed in three Phases known as Ferns City-I comprising Site Nos.1 to 170, Ferns City-II with Site Nos. 200 to 239 and Ferns City-III with Site Nos. 294 to
362. While traversing the averments of the plaint at para-5 with respect to the above said aspect in the written statement of defendant No.1, 7 and 8, there is no specific denial of the said claim. There is no denial in the written statement filed by defendant Nos.1, 7 and 8 that the Ferns City Layout has been formed by defendant No.1 and it is in 3 phases called as Ferns City I comprising Site Nos.1 to 170, Ferns City II with Site Nos. 200 to 239 and Ferns City III with Site Nos. 294 to 362. Instead some evasive statements have been made by defendants 1, 7 and 8 in their written statement in that regard. Now, according to the plaintiff, there was no site formed as Site No.171 in the Ferns City Layout, but defendant No.7 being Partner of 18 OS No.25588/2010 the defendant No.1 firm who had General Power of Attorney issued in his name by the original owners of the land namely Defendants 2 to 6, has misused the said General Power of Attorney and though the site No.171 is not in existence in the layout, but it is only an open space meant for common use where the members of the Plaintiff Association are parking their vehicles and using it as parking area, defendant No.7 has executed a Regd. Sale Deed in favour of his wife who is defendant No.8 on 13.04.2007. Therefore, the plaintiff has filed this suit for declaration that the Sale Deed dtd.13.04.2007 executed by the defendant No.7 as Power of Attorney Holder of defendants 2 to 6 in favour of defendant No.8 his wife, as null and void and for consequential relief of permanent injunction. 19
OS No.25588/2010
10. Though the defendant Nos. 1, 7 and 8 have not specifically traversed the averments of the plaint at Para-5 wherein it is stated that only site Nos. 1 to 170 in Ferns City I and Site Nos.200 to 239 in Ferns City II and Site Nos. 294 to 236 in Ferns City III, have been formed, said Defendants contend that the predecessors-in-title (Defendants 2 to 6) who sold the lands or agreed to sell the lands have executed Power of Attorney in favour of the partners of the defendant No.1 firm only in respect of Plots that are specifically marked and delineated and hence the area not earmarked have been held by the original owners of the land in which the development is made in the Layout formed by the defendant No.1 Firm. That the open area in the layout though comprised within the compound wall of the layout, it belongs to the land owners; and defendant No.1 had no authority to make 20 OS No.25588/2010 over the open area of the layout either to the plaintiff or any third party and the open area was not handed over to the defendant No.1 by the land owners. The suit schedule property which is actually Site No.171 belongs to the land owners and not to the plaintiff association or its members. Manager of the Plaintiff Association has accepted the cheque issued towards the maintenance charges of the suit schedule property No.171 which has been sold by defendant No.7 in favour of defendant No.8 under the Sale Deed dtd. 13.04.2007 and after lapse of 3 years of accepting the cheque the suit has been filed to harass the defendants. Defendants do not admit that the suit schedule property is a part of common area. Defendant No.8 has become owners of the suit schedule plot and she is in possession of the same and hence the suit is not maintainable. 21
OS No.25588/2010
11. On behalf of the plaintiff initially the President of the Plaintiff Association has been examined as PW.1. He has been cross examined partly and thereafter, by stating that due to his old age he is unable to tender himself for further cross examination, and that he is also suffering from lapse of memory, plaintiff has examined its another Member as PW.2. Under Ex.P.1, PW. 1 and another Dr.K. Srinivasan have been authorized to file this suit and prosecute the same. In fact, they have instituted this suit on behalf of the plaintiff. Ex.P.2 is the Registration Certificate of the Plaintiff Association, Ex.P.3 and 4 are its Memorandum of Association and Rules & Regulations. Ex.P.5 is the layout plan of the Ferns City Layout comprising of Ferns City I, II and III. Ex.P.6 is the brochure issued by defendant No.1 for marketing the plots formed in the said layout. Ex.P.7 is the 22 OS No.25588/2010 Proceedings of the AGM of the Plaintiff Association held on 25.04.2003. Ex.P.8 is the letter dtd. 30.10.2003 written by defendant No.1 to the plaintiff regarding transfer of layout for maintenance of common areas and civic amenities of Ferns City, to the said Association. Ex.P.9 is another letter dtd. 19.12.2006 written by defendant No.1 to the President of the Plaintiff Association thereby making payment of maintenance charge in respect of Plot Nos. 361 and 343 stating that the said plots had remained unsold in the Layout. Ex.P.10 is the original cheque issued in favour of the Plaintiff Association for a sum of Rs.7,266/- by the defendant No.1. Plaintiff has produced certified copy of the Sale Deed dtd. 13.04.2007 executed by the defendant No.7 in favour of defendant No.8 as Ex.P.11. Ex.P.12 is the copy of the Lease Agreement dtd. 22.11.2010 executed by 23 OS No.25588/2010 defendant No.7 in favour of B.S.N.L. in respect of the suit schedule property. In Ex.P.12 Site number of the suit property is not mentioned. Ex.P.13 is the letter dtd. 12.08.2013 written by defendant No.1 to BSNL stating that since defendant no.1 has handed over the possession of the Ferns City Layout to the plaintiff Association for maintenance, renewal of the Lease Agreement may be obtained from the plaintiff Association. Ex.P.14 is the certified copy of the Resolution dtd. 12.01.2018 passed by the plaintiff Association thereby authorizing PW.2 to represent in the case and to give evidence. Ex.P.15 is the Ferns Builders and Developers Plot Owners Manual issued by defendant No.1. Plaintiff has produced four photographs of the suit property as per Ex.P.16 to 19. 24
OS No.25588/2010
12. On the other hand, defendant No.7 has examined himself, on behalf of himself, defendant No.1 and 8 as DW.1. On behalf of the said defendants, registered GPA executed by defendants 2 to 6 land owners in favour of defendant No.7 and another is marked as Ex.D.1. The Assessment List in respect of the suit property bearing No.171 and another Property bearing No.172 is produced as per Ex.D.2. Tax paid receipts have been produced as per Ex.D.3 to 5, 7 to
21. Ex.D.6 is Form-B property register extract, Ex.D. 22 is the R.T.C. and Ex.D.23 is the Power of Attorney executed by defendant No.8 in favour of defendant No.7.
13. On behalf of the plaintiff, Learned counsel has argued that the suit property is a vacant space measuring 2,595 sq. ft which is a common area in the 25 OS No.25588/2010 Ferns City Layout formed by defendant No.1 and defendant No.1 after development of the Layout has handed over the possession of the common area of the layout to the plaintiff Association under Ex.P.8 letter dtd. 12.12.2006 and thereafter, the plaintiff has been maintaining the common area, as well as Layout. Defendant No.1 had earlier leased the suit schedule vacant space to BSNL under Ex.P. 12 lease agreement, but after the entire layout was handed over to the possession of the plaintiff Association, when the lease became due for renewal, defendant No.1 has addressed a letter to the BSNL authority asking for approaching the plaintiff Association to enter into renewal Agreement and also defendant No.1 has paid the maintenance charge in respect of two unsold site Nos. 361 and 343 vide letter marked at Ex.P.9 and after defendant No.1 sold the plots in the layout to the 26 OS No.25588/2010 members of the plaintiff Association there were only two plots bearing Nos. 361 and 343 which were unsold and defendant No.1 has paid maintenance charge for the said two sites to the plaintiff Association and that being the situation, defendant No.7 by misusing the General Power of Attorney which had been given by the land owners has executed suit sale deed dtd. 13.04.2007 as per Ex.P.11, in favour of his wife/ Defendant No.8 which is illegal, null and void and the evidence of DW.1 shows that in the entire land, layout was formed and it was handed over to the plaintiff Association for maintenance purpose and it is clear from the D.W.1's evidence that the defendant No.7 could not have executed the sale deed in respect of the suit schedule property in favour of defendant No.8. Thus, the Learned counsel for plaintiff has argued that the suit schedule vacant space belongs to 27 OS No.25588/2010 the plaintiff Association and the Sale Deed executed by defendant No.7 in favour of defendant No.8 on 13.04.2007 is liable to be declared as null and void by granting permanent injunction as well, restraining the defendants from interfering with the plaintiffs possession and enjoyment of the suit schedule vacant space.
14. On the contrary, Learned counsel for defendants 1 and 7 having filed written arguments contends that the plaintiff has not produced any documents to show that it is maintaining the Layout in question; defendant No.8 is the owner in possession of the suit schedule property by virtue of the Regd. Sale Deed. Defendant No.8 has established that the Plaintiff is interfering with her ownership of the suit property and therefore the plaintiff is not entitled to 28 OS No.25588/2010 the relief of injunction. Plaintiff has not sought the relief of declaration of ownership and the plaintiff has no title over the suit property and hence the suit by third party for declaration that the Sale Deed dtd.13.04.2007 is null and void is not maintainable. Plaintiff is not entitled to the relief under section 31 and 34 of Specific Relief Act. Plaintiff has not produced relevant documents to prove the plaint averments. In the cross examination of DW.1 nothing has been elicited. Burden to prove Issue Nos.1 and 2 is on the plaintiff. The purchaser and seller have not questioned the Sale Deed dtd.13.04.2007 and registered document is to be presumed to be valid under section 61 of the Transfer of Property Act. Defendant No.8 is in possession of the suit property and by virtue of section 102, 104 and 110 of the Indian Evidence Act, 1872, when the owner of the land 29 OS No.25588/2010 is in possession, presumption raises that the possession goes with the ownership. Here, in this case defendant No.7 as General Power of Attorney Holder has transfered the property in question to Defendant No.8. and there is no document to show that the suit site has been transfered in favour of plaintiff Association. In the cross examination of PW.1 he has stated that the plaintiff is relying on Ex.P.5, 6 and 9 to establish the plaintiff's ownership of the suit property. But, Ex.P.5 and 6 are layout Brochures which have been issued for marketing purpose and they do not confer any title on the plaintiff and Ex.P.9 is the letter of Defendant No.1 which does not also confer title on the plaintiff. Contention of the plaintiff that the suit property is open space belonging to the Plaintiff Association is untenable in law. PW.2 has deposed that the plaintiff has got copies of the Agreement executed 30 OS No.25588/2010 by Defendant No.1 in favour of other site owners in the Layout, but has not chosen to produce any such Agreements before the court. PW.2 states that in the document given by Developer there is mention that the suit schedule property should be kept vacant, but he has not produced any such documents before the court. Mere responsibility to maintain the layout does not confer title on the plaintiff Association. Plaintiff has not produced any documents to show that it has collected maintenance charges for the suit property from the members of the Association. Cross examination of PW.1 could not be completed because he was not tendered before the court. Plaintiff could have got appointed a Court Commissioner for enabling further cross examination of PW.1. In order to take away the benefit of admission made by PW.1 during his part cross examination, plaintiff has examined 31 OS No.25588/2010 PW.2 by seeking to discard evidence of PW.1. There is no prima facie case in favour of plaintiff and also plaintiff will not suffer irreparable loss and injury if the relief of permanent injunction is not granted and also balance of convenience is not in plaintiff's favour and plaintiff has also not established its ownership to the suit property. On the said grounds, Learned counsel for defendants 1 and 7 has prayed for dismissing the suit.
15. I have perused the records and considered the rival contentions. As can be seen from the cross- examination of PW.1 the defendants have suggested that the layout in question has been formed in an extent of 27 acres in 3 phases and plaintiff No.1 admitted the said suggestion. In fact it is the plaintiff's case that the Ferns City layout in question has been formed in 3 phases. Therefore the 32 OS No.25588/2010 suggestion made to PW.1 itself corroborates the said version of the plaintiff. PW.1 has deposed that the suit schedule property which is in dispute is situated adjacent to site No.1 of the layout. He has denied the suggestion that the suit schedule property is not a part of the layout. PW.1 has not been tendered for further cross-examination and in that connection it is contended on behalf of the defendants that the same has deprived the opportunity of taking into consideration of the admissions which are already elicited in part cross-examination of PW.1 because the plaintiff has got the evidence of plaintiff No.1 and discarded thereafter examined PW.2. However I have gone through the cross-examination of PW.1 done by defendants but I do not find any admission in his cross-examination in favour of the defendants. On the other hand, his deposition in the part cross- 33
OS No.25588/2010 examination shows that his statements are consistent with the plea taken in the plaint. However the suggestion made to him shows that the Ferns city layout has been indeed formed in 3 phases.
16. In the cross-examination of PW.2 it is elicited that in none of the sale deeds executed by the defendant No.1 in favour of the purchasers of the plots in Ferns city lay out, the suit property has been shown as open space. In my opinion, the said statement elicited in the cross-examination is not enough to hold that the suit property is not the part of the aforesaid layout. Of course later PW.2 states that in the documents given by the defendant No.1 there is mention that the suit schedule property is kept as open space. However, the plaintiff has not produced any specific documents which state that the suit 34 OS No.25588/2010 schedule property should be kept open. He has denied the suggestion put to him that the suit schedule property is not a part of the Ferns City layout.
17. Coming to the documentary evidence, Ex.P5 is an admitted layout plan of the Ferns City layout consisting of phase 1 to 3. The suit schedule property which is in dispute has been marked in Ex.P5 as Ex.P5(a). In Ex.P5 there is no mention of formation of site No.171. Ex.P5 corroborate the plaintiff's version that in phase 1 site No.1 to 170, in phase 2 site No.200 to 293 and in phase 3, 294 to 362 have been formed in Ferns City layout. Ex.P5(a) which is marked as suit property has not been given any number in the layout plan. The contesting defendants have not chosen to produce any other layout plan before the court. So the only layout plan available before the court in respect 35 OS No.25588/2010 of Fern City Layout in Phase 1 to 3 is Ex.P5. DW.1/defendant No.7 examined on behalf of the contesting defendants admit Ex.P5 in the cross- examination at para 4 page 8. His relevant statement at para 4 page 8 of his cross-examination is as below:-
"4. There was a small house in site No.171. It is true that Ex.P5 is the sketch web hosted by the defendant No.1. It is true that at the entrance open space is shown without numbering. The space identified by the witness is marked as Ex.P5(a). It is true that as per Ex.P5 sketch sites are numbered from plot No.1 up to 170. The 'C' is put there to show it as corner site".
Therefore Ex.P5 layout plan being not in dispute shows that there is no site formed such as No.171 in the layout plan. DW.1 states that since this a corner 36 OS No.25588/2010 site, the letter 'C' has been denoted for suit schedule property. Infact in Ex.P5(a) there is no marking as 'C'.
18. Ex.P8 is the letter dtd.30.10.2003 written by the plaintiff to the defendant No.1 seeking transfer of the maintenance, common area, basic amenities of Ferns City layout to the plaintiff. The defendants are not disputing the said fact. Infact in the written statement of defendant No.1 and 7 it has been admitted that after formation of the layout it was handed over to the plaintiff at its first annual general meeting held on 18.05.2003. At para 7 of the plaint the plaintiff has claimed that on 18.05.2003 the maintenance ect. of layout was handed over to the plaintiff. This has been admitted in the written- statement. Of course Ex.P8 the letter is written by the plaintiff on 30.10.2003 and yet the fact that the 37 OS No.25588/2010 layout plan handed over to the plaintiff has been admitted at para 6 of the cross-examination of DW.1, he states that the first phase of the Ferns City was completed by 18.05.2003 and the plaintiff is managing the said part of the layout ever since. He however reiterates that the suit schedule property described as site No.171 is not part of any of the 3 phases of the layout. His relevant statement is at para 7 page 9 and 10 of his cross-examination which is as below:-
"7.Site No.171 is not the part of the phase 1 and it is out side the phase No.1. site No.171 is not part of any of the phase. It is not true to suggest that site No.171 is not the part of any phase because it is a open space and not numbered".
After stating that the site No.171 is not part of any phase, strangely he has denied the suggestion made 38 OS No.25588/2010 that the said site is not part of any phase and it is an open space. Actually his statement that site No.171 is not part of the phase 1 and it is out side phase 1 and it is not part any of the phase supports the plaintiff's contention that no such site No. 171 as suit property has been formed in the layout. When he was asked as to when site No.171 was assigned to the suit property, he states that he does not know. He states that whatever documents the defendant had in respect of the existence of site No.171 have been produced and there are no other documents. The defendants have produced the demand register extract which is marked as Ex.P2 and tax paid receipts in which site No.171 has been mentioned. But on the basis of demand register extract and tax paid receipts the defendants contention that site No.171 has been formed cannot be accepted. Admittedly Ex.P5 is a layout plan of 39 OS No.25588/2010 phase 1 to 3 to Ferns City layout and in the same there is no mention of site No.171.
19. The defendant No.1 has written Ex.P9 letter to the plaintiff on 19.12.2006 thereby enclosing a cheque for payment of maintenance charge in respect of plot No.361 and 343 by stating that the said sites were unsold but the sale-able area of the plots has been reduced and later site No.343 has been sold and hence maintenance charge is payable for 2005-06 only. He also admits at para 6 of his cross- examination that the list enclosed to the Ex.P9 consists the list of sites and names of the purchasers of the said sites and further that the defendant No.1 was paying maintenance charge in respect of unsold sites. His relevant evidence at para 6 page 9 of his cross-examination is as below:-
40
OS No.25588/2010 "It is true that Ex.P9 is the list of sites and the name of persons were purchased the site submitted to the plaintiff. It is true that in respect of unsold sites the defendant No.1 were paying the maintenance charges.
This again support the plaintiff's case that only site 361 and 343 were remaining unsold and the first defendant was paying maintenance charges for same to the plaintiff. Ex.P12 is the lease agreement dtd. 22.11.2010 executed by defendant No.7 in favour of the BSNL in respect of the suit schedule property. In the schedule of the said agreement the site number has not been mentioned but the boundaries have been mentioned and the same shows that it relates to the suit schedule property. Ex.P12 is also not in dispute.
Subsequently, the defendant No.7 as the partner of the first defendant firm has written letter to the 41 OS No.25588/2010 Divisional Engineer of the BSNL on 12.08.2013 stating that the above plot has been handed over to the plaintiff and after possession was handed over to the plaintiff the plaintiff is collecting the maintenance charges and in view of the same the renewal of the lease agreement marked at Ex.P12 may be obtained by the BSNL directly from the plaintiff's association. Ex.P13 letter reads as follows:-
Ferns Builders and Developers, 1st Floor, Marathahalli Outer Ring Road, Doddanakkundi, Opp. Doddanekkundi Bus Stop, Bangalore-560 037 Ph: 0804245 2300 - 99. BSNL/RENT/FCPOA Divisional Engineer, BSNL KR Puram Rly. Str. Bangalore Subject: BSNL Rent Lease Renewal / Rent for housing their electronic exchange at FERNS CITY, Doddanekundi.
A monthly rent of Rs. 1250/- fixed for the accommodation let out to BSNL for housing their mini exchange and technicians at FERNS CITY, Doddanekundi is due for renewal. we had since handed over the possession of Ferns City Layout to FERNS CITY PLOT 42 OS No.25588/2010 OWNERS ASSOCIATION (Reed) who are collecting the maintenance directly from the residents and maintaining accounts duly audited.
In view of that we request you to execute the renewal agreement a fresh with FERNS CITY PLOT OWNERS ASOCIATION and the monthly rentals paid directly to them.
A letter to this effect was already handed over to your office few months back but no action seems to have been taken so far.
Pl do the needful.
With regards' Your's Faithfully, For Ferns Builder and Developers.
R. Nagaraj Partner.
Ex.P13 conclusively shows that the suit schedule plot belonged to the common area of the Ferns City layout and possession of same was handed to the plaintiff's association for maintenance and hence the defendant No.7/DW.1 as the partner of defendant No.1 has written Ex.p13 letter to the Divisional Engineer of the 43 OS No.25588/2010 BSNL to enter into a fresh renewal lease agreement with the plaintiff.
20. Apart from the above, u/s 106 of the Indian Evidence Act the burden of proving facts which are in special knowledge of a party lies on such party. Sec. 106 of Indian Evidence Act 1972 reads as follow:-
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".
The defendant No.1 being the developer and defendant No.7 being its partner they are supposed to have special knowledge as to how many sites were formed in the layout and which are the common areas and which are the civic or basic amenities areas in the layout. The defendants contended that the common 44 OS No.25588/2010 areas have been retained by the land owners/ defendant 2 to 6 and in the written-statement it is contended that the land owners have not given GPA in respect of the common areas to the defendant No.1. if that is the case, the defendants and in particular the developer and its partner ought to have produced the agreements or conveyance documents which are entered into by them with the land owners to prove the said terms claimed by them. It is a fact which can be within the special knowledge of the developer and its partner and land owners. However, the defendants have not chosen to produce any such development agreement or other conveyance document entered into between the developer and land owners. When the materials on record clearly show that site No.171 was not formed in the layout. And admittedly it is situated within the compound enclosure of the layout 45 OS No.25588/2010 it raises inference that the suit schedule property is part and parcel of the layout and is common area belonging to the owners of the plots in the said layout. Hence, from the above material it is clearly established that the suit schedule property is not a site bearing No.171 as claimed by the defendants but it is vacant space/common area belonging to the layout and as a result to the owners of the plots of the layout. Another contradiction which deserves to be noted is that the defendants who have claimed that the land owners had not executed GPA in respect of common areas in favour the developer and hence the developer had no power to convey the common areas to the plaintiff's association, have, however claimed that on the basis of the GPA the defendant No.7 who is the Manager of the Developer Firm has sold the suit schedule property by the assigning the same site 46 OS No.25588/2010 No.171 to his wife defendant No.8. When the material on record show that site No.171 has not been formed in lay out and the defendants claim that the GPA given by the land owners had not empowered the developer to alienate the common area and also had not handed over possession of the common area to the developer- defendant No.7 could not have executed the sale deed in respect of suit schedule property which is actually not a site formed in the layout but only a vacant space forming part of layout. Therefore, it is amply clear that the sale deed executed by the defendant No.7 as GPA holder of defendant No.2 to 6 in favour of his wife defendant No.8 is null and void. Consequently issue No.1 is answered in affirmative.
21. Issue No.2:- The plaintiff has proved that the suit schedule property is part and parcel of the Ferns 47 OS No.25588/2010 City layout and the same is not the site formed in the layout but it is vacant site forming part of the layout and hence the plaintiff being the plot owners association of the said layout is entitled to manage and maintain the suit schedule property and it belongs to the right of all the purchasers of the layout. The defendant No.7 as the partner of defendant No.1 in collusion with land owners seems to have registered the sale deed in favour of his wife-defendant No.8 by showing the same as site No.171 which shows that the defendants have posed threat to the plaintiff's possession of the suit property and also caused interference therewith. Therefore the plaintiff is entitled to relief of permanent injunction as sought for. Consequently issue No.2 is answered in affirmative. 48
OS No.25588/2010
22. Issue No.3:- The plaintiff has valued the suit schedule property u/s 24 of the Karnataka court fee and suit valuation Act for the relief of declaration and paid the court fee of Rs.73,775/- and further valued the suit u/s 26 of the said Act for the relief of permanent injunction and paid court fee of Rs.50/- in total the plaintiff has paid the court of Rs.73,825/- the same is in accordance with law. The defendants have not produced any material to show that the valuation of suit property is wrong. Consequently issue No.3 is answered in affirmative.
23.Issue No.3:- In the result, I proceed to pass the following :-
ORDER The suit of plaintiff is hereby decreed with cost.
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The defendant No.1 to 8 are hereby
restrained by a decree of permanent
injunction from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property and also from alienating or encumbering or creating any third party interest in relation to the common areas, open spaces, civic and other facilities with in the Ferns City layout including the suit schedule property.
Further it is declared that the registered sale deed dtd.13-04-2007
executed by the defendant No.7 as power of attorney holder for defendant No.2 to 6 in favour of defendant No.8 in respect of the suit schedule property is null and void. 50
OS No.25588/2010 Draw the decree accordingly.
--
(Dictated to the Stenographer, directly on computer, transcript thereof, is corrected and then pronounced by me in the open court on this the day of 21 st day of January, 2022)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ.,Mayo Hall, Bengaluru.51
OS No.25588/2010 ANNEXURE
1. List of witnesses examined for the plaintiff:
P.W.1 G.Harihara Nandanan P.W.2 Vishwanathan Paramasivam
2. List of witnesses examined for defendant:
D.W.1 Sri.R.Nagaraj
3. List of documents exhibited for the plaintiff:-
Ex.P.1 Resolution dated 21.02.2010 Ex.P.2 Certified copy of the Certificate of Registration Ex.P.3 Certified copy of the Memorandum of Association Ex.P.4 Certified copy of the Rules and Regulation Ex.P.5 Copies of Layout Plan Ex.P.5(a) Space Identified document dtd.
23.03.2021
52
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Ex.P.6 Original Ferns City Boucher
Ex.P.7 Certified Extract of the Minute of First
Annual General Meeting held on
18.05.2003
Ex.P.8 Office copy of Letter dtd. 30.10.2003
Ex.P.9 Letter dtd. 19.12.2006 with list of site
owners of Ferns City
Ex.P.10 Cheque No.066195 dtd. 16.09.2008
Ex.P.11 Certified copy of the Sale Deed dtd.
13.04.2007
Ex.P.12 Certified copy of the Lease Agreement
dtd. 22.11.2010
Ex.P.13 Attested copies of the Letter dtd.
12.08.2013
Ex.P.14 True copy of the Resolution dtd.
12.01.2018
Ex.P.15 By-Laws
Ex.P.16 Copy of the Sale Deed
Ex.P.17-19 Photos
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OS No.25588/2010
4. List of documents exhibited for defendants:
Ex.D.1 Power of Attorney Ex.D.2 Tax Demand Register Extract Ex.D.3-4 Betterment charges paid receipts Ex.D.5 Tax paid receipts Ex.D.6 Form-B Ex.D.7 Receipt dtd. 03.06.2010 Ex.D.8-21 Tax paid receipts Ex.D.22 R.T.C for the year 1997-98 Ex.D.23 Power of Attorney executed by
Defendant No.8 in favour of Defendant No.7.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru.
54
OS No.25588/2010 ( Judgment pronounced vide separate judgment) ORDER The suit of plaintiff is hereby decreed with cost.
The defendant No.1 to 8 are hereby restrained by a decree of permanent injunction from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property and also from alienating or encumbering or creating any third party interest in relation to the common areas, open spaces, civic and other facilities with in the Ferns City layout including the suit schedule property.
55
OS No.25588/2010
Further it is declared that the
registered sale deed dtd.13-04-2007
executed by the defendant No.7 as power of attorney holder for defendant No.2 to 6 in favour of defendant No.8 in respect of the suit schedule property is null and void.
Draw the decree accordingly.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru.