Bangalore District Court
Sri.D.Krishnappa vs Sri.Venkatesh on 12 August, 2016
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED THIS THE 12th DAY OF AUGUST, 2016
PRESENT
Sri.Muhammed Khan .M. Pathan,
B.Com., LL.B.(Spl), LL.M.(Business Law)
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.10883/2006
PLAINTIFF: Sri.D.Krishnappa
S/o late Devappa
Aged about 58 years, r/at
No.5/30, Lingarajapuram,
Bangalore-560 084.
(By Sri.H.P.Leeladhar, Advocate)
/VS/
DEFENDANT: Sri.Venkatesh
S/o Papaiah
Aged about 30 years, r/at
Vaddarapalya,
Krishnarajapuram Hobli,
Bangalore East Taluk.
(By Sri.V.Chandrappa, Advocate)
Date of Institution of the 12-12-2006
suit
Nature of the suit (suit on Injunction suit
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 31-08-2012
recording of evidence
Date on which judgment was 12-08-2016
Pronounced
2 O.S.No.10883/2006
Duration Years Months Days
09 08 -
(Muhammed Khan .M. Pathan)
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The original plaintiff has filed the suit for permanent injunction against the defendant. Subsequently, the plaint is amended and plaintiff has sought for the relief of declaration to the effect that plaintiff is the absolute owner in possession of the suit property and to declare that the compromise decree dated 12/08/2009 in FDP No.19/2005 is not binding on the plaintiff and to direct the defendant to quit, vacate and handover the vacant possession of the shed constructed in the suit schedule property measuring 8x10ft.
.2. The averments of the amended plaint are as under:
3 O.S.No.10883/2006
The plaintiff is the owner in possession of the suit property bearing site No.57, Khata No.110/3, situated at Vaddarapalya village, Horamavu Agrahara Dhakale, Bangalore South Taluk, measuring East to West 40 feet and North to South 14 feet, as per the schedule below:
SCHEDULE All that piece and parcel of site property bearing No.57, Khata No.110/3, situated at Vaddarapalya village, Horamavu Agrahara Dhakle, Bangalore South Taluk, measuring East to West 40 feet, North to South 14 feet including 1 square ACC sheet roofed house and bounded on :
East : 25 feet road, West : Site No.58 North: property belongs to S.Rajendran, South: Private property The suit property was purchased by the plaintiff under a registered sale deed dated 02/09/1999 from V.Chandra Prakash Rao, who is represented by the General Power of Attorney holder of Anjanappa, 4 O.S.No.10883/2006 Thimmaiah and Papaiah of Lingarajapura. The schedule property is a site formed in Sy.No.109/1 and 110/5 originally owned by Anjanappa, Thimmaiah and Papaiah and they have sold the schedule property under affidavit cum sale agreement dated 21/01/1988 for valuable consideration of Rs.7,840/- and executed an affidavit and General Power of Attorney dated 21/01/1988 handing over the possession of the schedule property in favour of the vendor of the plaintiff and received the entire sale consideration and also handedover the vacant possession of the schedule property to Chandra Prakash Rao. The vendor of the plaintiff was in peaceful possession and enjoyment over the suit property and he sold the property on 02/09/1999 and after purchasing the same, the plaintiff is in possession of the suit property. Accordingly, khatha is changed in his favour. His vendor had constructed one square ACC sheet house in the schedule property. The plaintiff is in possession and enjoyment of the suit property. 5 O.S.No.10883/2006
The plaintiff has reliably learnt that defendant and his family members have colluded with each other and filed a suit in O.S.No.3694/1997 for partition and separate possession in respect of Sy.No.109/1 and 110/5 measuring 2 acres 23 guntas and they are entitled for the equal share in the said property and their came to be decreed on 04/02/2004 and they had filed petition for final decree proceedings in FDP No.19/2005. In pursuant to the preliminary decree in O.S.No.3694/1997, a compromise petition came to be filed colluding with each other to defraud and defeat the plaintiff's right and got allotted the share of the defendant and subsequently the final decree has been passed. The compromise decree is obtained by suppressing the material facts. The suit of the defendant and his brothers is collusive. The partition suit filed is collusive and plaintiff is not a party to the suit. The 1st defendant has trespassed into the suit property and has occupied and constructed shed in the suit property measuring 10X8 ft. The defendant 6 O.S.No.10883/2006 has no manner of right or title over the suit property and they are trying to illegally dispossess the plaintiff. Hence, the suit for declaration and for permanent injunction against the defendant.
3. The defendant made his appearance through advocate and filed the following written statement and submitted the additional written statement in respect of the amendment sought for by the plaintiff.
The defendant has denied the plaint averments by contending that plaintiff suit is not maintainable. It is denied that plaintiff is absolute owner in possession and enjoyment of the suit schedule property till date and the khata is changed in his name and plaintiff is paying taxes to the concerned authority. It is also denied that defendant has illegally attempted to interfere with the peaceful possession and enjoyment of the suit schedule property in the month of October, 2006.
7 O.S.No.10883/2006
It is further contended by the defendant that plaintiff is not at all in possession of any portion of the land bearing Sy.Nos.109/1 and 110/5 and the said properties are ancestral and joint family properties of defendant and his family members. The defendant and his brothers had filed a suit in O.S.No.3694/1997 and the said suit came to be decreed on 04/02/2004 and FDP proceedings was initiated, the Partition Deed came to be registered before the Sub-Registrar, the revenue records were mutated in the name of the defendant and his brothers as per their shares. Further, the defendant is not the owner in respect of site No.57, khata No.110/3 and they do not possess such house list khatha No.110/3. The plaintiff concocting the alleged General Power of Attorney and affidavit dated 21/01/1988 may be got such fraudulent documents. As per the boundaries given by the plaintiff in respect of house list Khatha No.110/3, situated at Vaddarapalya village does not exist and the boundaries also do not exist in the Vaddarapalya 8 O.S.No.10883/2006 panchayath limits. Hence, prays for dismissing the suit.
4. The defendant in his additional written statement denying the averments made in the amended plaint. It is specifically denied that plaintiff was in peaceful possession and enjoyment of suit schedule property after purchase of suit property from V.Chandraprakash Rao under a registered sale deed dated 02/09/1999. The said V.Chandraprakash Rao was not the owner in respect of khatha No.110/3 and the said khatha never existed. It appears that said V.Chandraprakash Rao and the plaintiff might have created the said General Power of Attorney and agreement of sale in respect of the property bearing Sy.No.109/1 and 110/5. The defendant's family members never sold the property in favour of V.Chandraprakash Rao or anyone else. It is also denied that on the basis of fraudulent compromise decree, the revenue records were mutated in the name 9 O.S.No.10883/2006 of the defendant and obtained fraudulent compromise decree. Since the plaintiff is totally stranger to the defendant family, he has no legal right to question the decree and the final decree proceedings and he is not concerned to the property bearing Sy.No.109/1 and 110/5. The suit is liable to be dismissed for non- joinder of necessary parties. Hence, prays for dismissing the suit of plaintiff.
.5. On the basis of the above pleadings, the following issues are framed ;
1) Does the plaintiff prove his lawful possession over schedule property ?
2) Does the plaintiff prove the interference caused by the defendant with his possessions?
3) What order or decree ?
Addl.Issues framed on 07/03/2012.
1) Whether the plaintiff to prove that he is the absolute owner of the suit schedule property?
2) Whether the plaintiff to prove that decree and the compromise decree passed in FDP19/2005 is not binding on the plaintiff ?
3) Whether the plaintiff to prove that he is entitled for vacant possession of the shed portion in the suit schedule property ? 10 O.S.No.10883/2006 Addl.Issues framed on 05/06/2012
1) Whether the plaintiff to prove that he is absolute owner in title to the suit property?
2) Whether the plaintiff further proves that the compromise decree dated 12/08/2009 in FDP No.19/2005 (O.S.No.3694/1997) is a fraudulent compromise and not binding on the plaintiff ?
3) Whether the plaintiff is entitled for possession of the suit property ?
4) Whether the suit of the plaintiff is bad for non-joinder of necessary parties ?
5) Whether the suit of the plaintiff is barred by law of limitation?
.7. The plaintiff has filed this affidavit evidence and examined himself as P.W.-1 and got marked Ex.P.1 to Ex.P.11. On behalf of defendant, the defendant is examined as D.W-1 and got marked documents Ex.D.1 to Ex.D.19 and closed his side.
8. Heard the arguments on both the sides. .9. My findings on the above Points are as follows:
Issue No. 1: In the Negative 11 O.S.No.10883/2006 Issue No. 2 : In the Negative Addl. Issues dated 07/03/2012 Issue No. 1 : In the Negative Issue No. 2 : In the Negative Issue No. 3 : In the Negative Addl.Issues dated 05/06/2012 Issue No.1 : In the Negative Issue No.2 : In the Negative Issue No.3 : In the Negative Issue No.4 : In the Affirmative Issue No.5 : In the Affirmative Issue No. 3 : As per final order for the following:
REASONS 7. Issue Nos.1 & 2 and Addl. Issue No.1 to 3 dated 07/03/2012 and 05/06/2012: These issues are taken together for common discussion to avoid repetition of facts.
The plaintiff Mr.D.Krishnappa has instituted this suit for permanent injunction against the defendant restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over 12 O.S.No.10883/2006 the suit property. Subsequently the plaint is amended and the amended written statement is filed to declare that the plaintiff is the absolute owner in possession of the suit property. He has purchased the suit property through a registered sale deed dated 02/09/1999 from the vendor of the General Power of Attorney holder of the defendant's father late Anjanappa and father of the defendant namely Thimmaiah and Papaiah and to declare that compromise decree dated 12/08/2009 in FDP No.19/2005 is not binding on the plaintiff and to direct the defendant to quit, vacate and handover the vacant possession of the shed constructed in the suit schedule property measuring 8X10ft. The suit property as described in the plaint is reproduced below:
SCHEDULE All that piece and parcel of site property bearing No.57, Khata No.110/3, situated at Vaddarapalya village, Horamavu Agrahara Dhakle, Bangalore South Taluk, measuring East to West 40 feet, North to South 14 feet 13 O.S.No.10883/2006 including 1 square ACC sheet roofed house and bounded on :
East : 25 feet road, West : Site No.58 North: property belongs to S.Rajendran, South: Private property
8. The plaintiff in order prove his case has examined himself as P.W-1 and got marked documents Ex.P.1 to Ex.P.11.
9. As against the evidence of the plaintiff, the defendant examined himself as D.W-1 and produced documents Ex.D.1 to Ex.D.19.
10. In the course of arguments, the learned counsel appearing for the plaintiff submits that plaintiff has purchased the suit schedule property under the registered sale deed in the year 1999 and the proceedings in the final decree and compromise petition are not binding on the plaintiff. the plaintiff is not a party in the said proceedings. He is a purchaser 14 O.S.No.10883/2006 of the property and his right is to be protected. The plaintiff is entitled for the relief of declaration as sought for and consequential relief of the possession and permanent injunction against the defendant and he prayed to decree the suit. On the other hand, the learned counsel appearing for the defendant submits that plaintiff has failed to prove that he is the absolute owner of the suit schedule property. The property is subject matter in the final decree proceedings FDP No.19/2005 and the compromise order is passed in the said final decree proceedings and it is not binding on the plaintiff. The plaintiff has no right to sue the defendant and he prayed to dismiss the suit.
11. The defendant has relied on the rulings reported in :
1. 2009(2) property law decision 8(SC) (Suraj Lamp and Industries Private Limited through Director v/s State of Haryana and Another) 15 O.S.No.10883/2006
2. ILR 2014 Kar. 1963 (P.Dilip Kumar V/s Life Insurance Corporation of India, Shimoga and Another).
12. I have perused the entire evidence on record.
The plaintiff has based his claim on registered sale deed executed by the General Power of Attorney holder of the defendant's father in respect of the suit schedule property bearing site No.57, Khata No.110/3, situated at Vaddarapalya village, Horamavu Agrahara Dhakale, Bangalore South Taluk, measuring East to West 40 feet and North to South 14 feet. The sale deed of the plaintiff is on the basis of the General Power of Attorney. On the basis of the sale deed, mutation is effected and he is in lawful possession over the suit schedule property. Further, plaintiff has sought for amendment to the effect that the plaintiff has purchased the property on 02/09/1999 from V.Chandraprakash Rao under a registered sale deed and he is put in possession of the schedule property 16 O.S.No.10883/2006 and he is the absolute owner of the schedule property, which comes under Horamavu Agrahara, K.R.Puram Hobli, Bangalore East Taluk and the concerned panchayath has issued form No.9 and 10 and he has regularly paid the taxes of the suit property. Further, he contended that defendant and his family members colluded with each other and have filed a suit in O.S.No.3694/1997 for partition and separate possession in respect of Sy.No.109/1 and 110/5 measuring 2 acres 23 guntas of Horamavu Agara village, K.R.Puram Hobli, Bangalore South Taluk and it is a joint family property and the suit came to be decreed on 04/02/2004 and thereafter, the defendant alongwith his brothers have filed a final decree proceedings for partition. On the basis of the preliminary decree in FDP No.19/2005 and colluding with each other, they have filed a compromise petition to defraud the plaintiff and deny his right. Subsequently final decree was registered before the Sub-Registrar. On the basis of the partition deed and 17 O.S.No.10883/2006 revenue records were mutated. The compromise entered is fraudulent and it is obtained by suppressing sale of the schedule property to the plaintiff. The suit is collusive. The plaintiff is a purchaser from the father of the defendant and his brothers Thimmaiah and Papaiah and by executing General Power of Attorney on 21/01/1988 and affidavit and agreement of sale, sold entire land to one Chandraprakash Rao S/o late Vasudeva Rao for valuable consideration and handedover the vacant possession of the said property to the vendor of the plaintiff. The plaintiff further submits that the partition suit is a collusive suit. The schedule property was already sold to V.Chandraprakash Rao through his General Power of Attorney by father of the defendant and his brothers. The preliminary decree is not binding on the plaintiff. The defendant during the pendency of the suit made a criminal trespass into the suit schedule property and occupied the shed constructed by plaintiff measuring 10x8' and illegally came in possession of the said shed. 18 O.S.No.10883/2006 The defendant and their henchmen are trying to disturb the peaceful possession and enjoyment of the plaintiff over the suit schedule property. In this connection he filed a police complaint against the defendant and they are trying to illegally dispossess the plaintiff from the suit property.
13. The defendant has specifically denied the execution of the sale deed and the Power of Attorney dated 21/01/1988 and that the plaintiff has purchased the suit property on 02/09/1999 from V.Chandraprakash Rao under a registered sale deed. He came in possession of the property and he is the absolute owner in possession of the property. The averments made in the plaint and the amended plaint are denied by the defendant. According to the plaintiff, the present suit is not maintainable and is liable to be dismissed. The shares have been allotted to the members of the family and the plaintiff has no legal right to question the decree and final decree 19 O.S.No.10883/2006 proceedings as he is a stranger to the family. The suit documents are created by the plaintiff.
14. Now let me proceed to examine the oral evidence placed by the plaintiff on record. The plaintiff Krishna is examined as P.W-1, he has filed his evidence affidavit and has specifically stated that site No.57 in khatha No.110/3 of Vaddaraplaya village is purchased by him through a registered sale deed dated 02/09/1999 from Chandraprakash Rao for a valuable sale consideration. The dimension of the property is East West 40ft and North South 14ft.
15. The suit property was originally owned by Anjanappa, Thimmaiah and Papaiah and they had formed sites in Sy.No.109/1 and 110/5 and they had executed the General Power of Attorney on 21/01/1988, the sale agreement and affidavit and sold the suit sites for Rs.7,840/- and received the entire sale consideration. Eversince the said date of General Power of Attorney, sale agreement and affidavit, 20 O.S.No.10883/2006 Chandraprakash Rao was in possession of the property and he has sold the suit property to the present plaintiff for Rs.56,000/- and in pursuant to the sale deed, khatha is transferred to his name.
16. The defendants have claimed that the suit property has fallen to his share in the final decree proceedings FDP No.19/2005 by a compromise decree. The defendant had filed O.S.No.3694/1997, preliminary decree was passed and FDP No.19/2005 was initiated for drawing the final decree, in the meantime the compromise is effected. The defendants knowing fully well the transaction relating to the suit property, Chandraprakash Rao received the sale consideration of Rs.7,840/- in respect of the suit property and they have no right over the suit property. The defendants are trying to trespass into the suit property and dispossess the present plaintiff. Therefore, plaintiff prayed to decree the suit. 21 O.S.No.10883/2006
17. The defendant has also relied on the rulings reported in :
1. 2009(2) property law decision 8(SC) (Suraj Lamp and Industries Private Limited through Director v/s State of Haryana and Another)
2. ILR 2014 Kar. 1963 (P.Dilip Kumar V/s Life Insurance Corporation of India, Shimoga and Another).
18. Apart from oral evidence, the plaintiff has also placed the documentary evidence on record, sale deed dated 02/09/1999 at Ex.P.1, demand register extract, receipts at Ex.P.2 and Ex.P.3, affidavit of Anjanappa at Ex.P.5 and placed the photos and negatives at Ex.P.6 to Ex.P.9 and copy of police acknowledgement at Ex.P.11.
19. As against the evidence of plaintiff, defendant is examined as D.W-1 and he has filed his evidence affidavit and specifically stated that plaintiff is not in possession of the property, the question of forceful 22 O.S.No.10883/2006 dispossession of the plaintiff does not arise. The land bearing Sy.No.109/1 and 110/5 are ancestral and joint family properties. The defendant and his brothers have filed the suit for partition against the uncle Thimmaiah and Papaiah in O.S.No.3694/1997 and that suit came to be decreed in the year 2004 and decree order passed, final decree proceedings were initiated on the basis of the preliminary decree for partition and the compromise decree in FDP came to be registered.
20. The plaintiff has created and concocted the document for the purpose of this suit. There is no khatha No.110/3. The plaintiff has created the alleged General Power of Attorney and affidavit dated 21/01/1988, his father and uncle have not executed any affidavit in favour of Chandraprakash Rao in respect of land bearing Sy.No.109/1 and 110/5 and it is manipulated and the boundaries does not exist. The suit land is never converted from agricultural purpose 23 O.S.No.10883/2006 to non-agricultural purpose. V.Chandraprakash Rao was neither the owner nor in possession of the same. The question of executing sale deed by him does not arise. The sale deed is created to knock off the property of his family and plaintiff has created tax paid receipts and as such the suit is liable to be dismissed. In this connection, the defendant has placed reliance on endorsement issued by BBMP on 07/09/2012 at Ex.D.1, mutation register extract issued by Tahsildhar, Bangalore East Taluk at Ex.D.2, Encumbrance Certificate at Ex.D.3, certified copy of the judgment and decree in O.S.No.3694/1997 at Ex.D.19.
21. The plaintiff claims to be the absolute owner in possession of the suit site bearing No.57, khata No.110/3. The title of the plaintiff in respect of the suit site is to be traced in this declaration suit. According to the plaintiff, his vendor Chandraprakash Rao has obtained General Power of Attorney and affidavit from Anjanappa, Thimmaiah and Papaiah on 24 O.S.No.10883/2006 21/01/1988 and possession is handedover to his vendor under the said documents. The entire sale consideration of Rs.7,840/- is paid to them. In this connection, the plaintiff has not produced the original General Power of Attorney, instead the plaintiff has produced the affidavit said to have been executed by Anjanappa, Thimmaiah and Papaiah at Ex.P.5 dated 21/01/1988. The plaintiff has not examined his vendor Chandraprakash Rao in this case and he has not got examined any of the witness to evidence the fact that property in question was sold to his vendor by Anjanappa, Thimmaiah and Papaiah. The decision relied by the learned counsel for the defendant in 2009(2) property law decision 8(SC) (Suraj Lamp and Industries Private Limited through Director v/s State of Haryana and Another), the General Power of Attorney sale without production of copy cannot be accepted. The General Power of Attorney is not produced before the Court, instead he has produced the xerox copy of the General Power of Attorney which 25 O.S.No.10883/2006 is unregistered document. As per the sale deed dated 02/09/1999, Chandraprakash Rao has executed the sale deed as General Power of Attorney holder in favour of the present plaintiff. the General Power of Attorney is not produced. The property in question as shown in the sale deed is site No.57, khatha No.107, consisting of one square ACC sheet roof house having no civic amenities like electricity, water or sanitary facilities. The vendor of the plaintiff had no right to execute the registered sale deed in favour of the present plaintiff. There is no approved layout plan for forming sites in Sy.No.109/1 and 110/5 i.e., the suit survey land. The plaintiff has placed assessment extract of site No.57 issued by Horamavu Agrahara Grama Panchayath for collecting taxes for the year 2006-2007. The house tax assessment extract is for the year 2006-2007. The tax paid receipts do not disclose the property number. The photos produced by the plaintiff on record with negatives do not depict the true picture of the property in question. The plaintiff 26 O.S.No.10883/2006 has produced copy of the final decree proceedings where compromise is entered between the defendant and his family members. The plaintiff has not produced any material document to show that house is constructed in one square ACC sheet in the suit schedule property. The defendant has produced the copy of the judgment in O.S.No.3694/1997 at Ex.D.19. The preliminary decree is passed, in pursuant to the preliminary decree, final decree proceedings are initiated and matter is ended in the compromise. The present plaintiff has not assailed the preliminary decree of the proceedings recorded in the final decree which have become final decree proceedings by virtue of compromise petition. The decree has become final. The plaintiff has failed to establish by evidence that he is the absolute owner of the suit schedule property. There is no material on record to show that property in question is converted from agricultural land to non- agricultural land.
27 O.S.No.10883/2006
22. The plaintiff claims to be in possession of the property by virtue of the sale deed dated 02/09/1999 executed by the Chandraprakash Rao through the registered sale deed. The sale deed of the plaintiff is not acted upon. There is no mutation in respect of the sale transaction in the name of the present plaintiff. The contention of the plaintiff that the defendants have attempted to dispossess him and put up a shed measuring 8x10ft by encroaching his property, the plaintiff has not placed any material evidence on record to show that there is construction in the suit schedule property. The possession as claimed by the plaintiff is not proved and as such, there cannot be any protection for claim of the plaintiff in respect of possession of the property.
23. As far as the question of the alleged act of interference is concerned, the plaintiff had filed this suit for permanent injunction initially. Subsequently, he filed a suit for declaration and consequential relief 28 O.S.No.10883/2006 of the permanent injunction and to mandatory injunction for removal of the shed of the defendants put up by the defendants. The defendants have placed sufficient materials to show that the property in question is a joint family property consisting of Sy.No.109/1 and 110/5 and the property is not converted as non-agricultural land and there is approved layout for sale of the sites in the said agricultural land. The General Power of Attorney relied by the plaintiff is not produced and affidavit produced by the plaintiff in respect of the transaction of site No.57 cannot be accepted in view of the decisions 2009(2) property law decision 8(SC) (Suraj Lamp and Industries Private Limited through Director v/s State of Haryana and Another) and ILR 2014 Kar. 1963 (P.Dilip Kumar V/s Life Insurance Corporation of India, Shimoga and Another) referred supra. Therefore, I hold that plaintiff has failed to prove the alleged act of interference by the defendant. The plaintiff is not entitled for the relief of declaration of his 29 O.S.No.10883/2006 title in respect of the suit property. Moreso, plaintiff is not entitled for protection of his possession over the suit property.
24. The plaintiff has also claimed for possession of the property from the defendant. The plaintiff has specifically contended in the amended plaint the proceedings in the final decree in FDP No.19/2005 on the basis of the preliminary decree in O.S.No.3694/1997 are fraudulent and the compromise entered is not binding on the plaintiff and he has also sought for the possession of the property. The plaintiff has made claim on the basis of the registered sale deed, it is held supra that the plaintiff has failed to establish his title to the suit property. The compromise decree passed in FDP No.19/2005 has reached finality. There is no material evidence from the side of the plaintiff to prove that compromise decree entered into by the parties i.e., joint family members in respect of the suit survey land is 30 O.S.No.10883/2006 fraudulent compromise decree. Therefore, the compromise decree passed in FDP No.19/2005 on the basis of the preliminary decree (O.S.No.3694/1997) is binding on the plaintiff. The plaintiff has failed to establish that compromise decree is fraudulent and as such, the plaintiff is not entitled for the possession of the plaintiff. Therefore, the plaintiff is not entitled for the relies sought for in this suit. Hence, I answer Issue Nos.1 & 2 and Addl.Issue Nos.1 to 3 dated 07/03/2012 and 05/06/2012 in the Negative.
25. Addl.Issue No.4 : The defendant has specifically contended that the suit of the plaintiff is barred by time and it is bad for non-joinder of necessary parties. The plaintiff has brought this suit against the defendant alone and he has not made the party, the joint family members who are the parties in the final decree proceedings. In the absence of the proper and necessary parties, the compromise decree cannot be decided as fraudulent decree to defeat the 31 O.S.No.10883/2006 right of the plaintiff. Therefore, the contention of the defendant that suit of the plaintiff is bad for non- joinder of necessary parties has to be accepted. Accordingly, Addl.Issue No.4 is answered in the Affirmative.
26. Addl.Issue No.5 : The plaintiff has based his claim for declaration and consequential relief of possession on the basis of the sale deed without proving his title to the property. The suit is filed in the year 2006 on the basis of the sale deed of the year 1999. The plaintiff has not sought for the relief of declaration in the period of 3 years provided by filing the suit in declaration. The suit for partition in O.S.No.3694/1997 is filed much prior to the purchase of the property by the plaintiff. The final decree proceedings came to an end by compromise. The compromise petition is held to be binding on the plaintiff. The plaintiff ought to have filed the suit for the relief of declaration within 3 years from the date of 32 O.S.No.10883/2006 his sale deed. He has failed to file the suit within the period of limitation. Therefore, I answer Addl.Issue No.5 in the Affirmative.
27. Issue No.3 : For the foregoing reasons, the suit of the plaintiff fails. In the result, I pass the following :
ORDER The suit of the plaintiff is hereby dismissed.
In the circumstances, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by her, corrected and then pronounced by me in open court this the 12th day of August, 2016).
(Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE, BANGALORE.
**** ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 D.Krishnappa 33 O.S.No.10883/2006 List of witnesses examined for the defendant :
D.W.1 Venkatesh List of documents marked for the plaintiff :
Ex.P.1 Sale deed dated 02/09/1999 Ex.P.2 & 3 Tax paid receipts Ex.P.4 General receipt issued by Grama Panchayath office Ex.P.5 Affidavit of Anjanappa and others Ex.P.6 to 9 Photos and negatives Ex.P.10 Photographer bill Ex.P.11 Police NCR
List of documents marked for the defendant:
Ex.D.1 Endorsement issued by BBMP dated 17/09/2012 Ex.D.2 MR extract issued by Tahsildhar, Bangalore East Taluk Ex.D.3 Encumbrance Certificate Ex.D.4 Certified copy of the final decree in O.S.No.3694/1997 and FDP No.19/2005 Ex.D.4(a) Sketch Ex.D.5 to RTC extracts Ex.D.17 Ex.D.18 Death certificate Ex.D.19 Certified copy of the judgment and decree in O.S.No. 3694/1997 (Muhammed Khan .M. Pathan) V ADDL.CITY CIVIL JUDGE BANGALORE **** 34 O.S.No.10883/2006