Bangalore District Court
Smt.R.Chanchal vs Inspector General Of on 30 April, 2016
IN THE COURT OF XL. ADDL.CITY CIVIL& SESSIONS
JUDGE (CCH-41) AT BENGALURU.
Dated this the 30th day of April 2016.
PRESENT
SRI.JINARALAKAR. B.L.
B.A.,LL.B. (Spl.)
XL Addl. City Civil & Sessions Judge, Bengaluru.
O.S.NO.2990/2010
Plaintiffs : 1. Smt.R.Chanchal,
W/o. Sri.Rikhab Chand Jain,
Aged about 62 years,
R/o. No.401,
Panchasheel Apartments,
III Floor, III Cross,
Gandhinagar, Bengaluru-560 009.
2. Sri.N.Devaraju,
S/o. N.Narasaraju,
Aged about 36 years,
R/o. No.421, I Cross,
New Thippasandra,
HAL III Stage, Bengaluru-560 075.
(By Sri.D.N.Manjunath,
Advocate.)
AND:
Defendants: 1. Inspector General of
Registration & Commissioner,
VII Floor, BWSSB Building,
Cauvery Bhavan,
Bengaluru-560 009.
2. The District Registrar ,
2 O.S.2990/2010
No.2722, XII Cross,
Jayanagar IV Block,
Bengaluru-560 041.
3. The Sub-Registrar,
The Office of the Sub-Registrar,
Bommanahalli, Koramangala,
B.D.A. Complex, Bengaluru.
4. Smt.Vijayalakshmi,
D/o. Sri.B.Krishna Urs,
Aged about 53 years,
R/o. Lakshmi Nilaya,
Chandra Layout,
Laljinagar, Bengaluru-560 030.
5. Sri.Gibu Abrahaman Mathew,
S/o. Sri.P.Mathew,
Aged about 32 years,
Represented by his General Power of
Attorney Holder-Marium Mathew,
R/o. No.928, III Cross, ITI Layout,
Nagarabhavi II Stage,
Bengaluru-560 072.
6. Sri.Srivatsan Rangachari,
Aged about 42 years,
S/o. S.R.Chari, No.0-21,
Diamond District, Airport Road,
Bengaluru-560 008.
7. Sri.C.Ramesh,
Major, S/o.Chikkanna Gowda,
R/o. No.826, 17/F, 1st Main Road,
VI Block, Koramangala,
Bengaluru-560 095.
(D1 to D3 : By Sri.Laxminarayan
N.Hegde, District Government
3 O.S.2990/2010
Pleader,
D4 & D5 : Exparte,
D6 : By Sri.Prince Isac,
Advocate,
D7: By Sri.S.N.Aswathanarayan,
Advocate.)
***
i) Date of Institution of the 23.04.2010
suit.
ii) Nature of the suit. Declaration & Mandatory
Injunction.
iii) Date of the
commencement of 07.12.2011
recording of evidence.
iv) Date on which the
judgment was pronounced. 30.04.2016
v) Total Duration Year/s Month/s Days
06 -- 07
***
JUDGMENT
The plaintiffs have filed this suit against the defendants for judgment and decree to declare that the entries as found in the Encumbrance Certificate and so also the documents pertaining to the registering Authority relating to the suit property -All that piece and parcel of the immovable property bearing Bruhat Bengaluru Mahanagara Palike site No.818 PID No.68-8-6-818, dated 4 O.S.2990/2010 23.01.2009 being a vacant site situated at IV Block, Koramangala, Bengaluru, measuring to an extent of East to West 12.20 meters, North to South 18.30 meters, totally measuring 223.26 sq. meters and the entire property is bounded on East by: Site No.819, West by: Site No.817, North by: Road and South by: BDA property as found in Items -1 to 7 and so also, the entry as found in the Encumbrance Certificate for the period 01.04.2004 to 26.11.2008 as per the entry No.1 reflecting in the same transaction between Sri.Srivatsan Rangachari and C.Ramesh, who are the defendants No.6 and 7 are fraudulent entries and not binding on them, for Mandatory Injunction by way of a direction to the defendants No.1 to 3 to delete / revoke the entries as found in the Encumbrance Certificate and all the records pertaining to the registering authority as relating to the transaction reflected in Items 1 to 7 for the period 01.04.1987 to 18.12.2007 and the entry as found for the period 01.04.2004 to 26.11.2008 as per the Encumbrance 5 O.S.2990/2010 Certificate issued by the defendant No.3 as relating to the suit property and costs, etc. .2. The averments of the plaint in brief are that:
The plaintiffs are the absolute owner co-owners and in actual physical possession of the suit schedule property having derived the same by virtue of a registered Sale Deed dated 18.02.2010 from the predecessor-in-title- Sri.K.N.Krishna Murthy S/o. Late K.N.Narasinga Rao. Khata of the schedule property has been made in their name as per Khata Certificate issued by the BBMP bearing No.W68KTR/205/09-10, dated 03.03.2010. The schedule property was vacant site in the layout formed by the Bengaluru Development Authority in IV Block, Koramangala, Bengaluru.
Sri.K.N.Krishna Murthy being a permanent resident of Bengaluru and not being possessed a residential site had sought for allotment of a site before the BDA under the general category. After repeated attempts, BDA 6 O.S.2990/2010 having considered his request for the 8th time allotted the site in his favour as per the Order of Allotment dated 30.01.1988 and put him in possession as per the Possession Certificate. In furtherance thereof, the BDA has executed Lease-cum-Sale Agreement dated 29.01.1988 whereby Sri.K.N.Krishna Murthy was confirmed to be allottee and in possession subject to the conditions laid down by the BDA. In pursuance of thereof Sri.K.N.Krishna Murthy having complied with the terms and conditions of allotment and Lease-cum-Sale Agreement, the BDA executed registered sale deed dated 20.08.2007 whereby all the right, title and interest in respect of the property bearing site No.818, 4th Block, Koramangala was conveyed in his favour. The BBMP made Khata in his name and he was paying taxes relating to the suit property.
Sri.K.N.Krishna Murthy had also sought for permission to put up residential premises on the suit property and the BBMP accorded permission to put up construction on the suit property. Sri.K.N.Krishna Murthy being an absolute owner in possession decided to convey the suit property 7 O.S.2990/2010 for his domestic reasons by way of an absolute Sale Deed and has conveyed the entire property in favour of the plaintiffs under registered Sale Deed dated 18.02.2010 whereby all the rights, title and interest including possession was delivered in favour of the plaintiffs.
Prior to execution of the Sale Deed in favour of the plaintiffs, it was learnt that Sri.C.Ramesh-the defendant No.7 claiming himself to be the owner of the suit property had filed a Writ Petition before the Hon'ble High Court of Karnataka in WP.No.14037/2008 seeking for a writ of mandamus / certiorari against the BDA on the ground that the Deed of Cancellation executed by the BDA canceling the allotment made in his favour under a Deed of Cancellation dated 10.07.2007 whereby his right in the property has been seriously jeopardized and hence, had sought for a direction to quash the cancellation and afford an opportunity to the Writ Petitioner. The plaintiffs further learnt that the Hon'ble High Court of Karnataka upon hearing the parties was pleased to allow the Writ Petition 8 O.S.2990/2010 with a direction to BDA to afford an opportunity to all the parties by holding an enquiry by its order dated 27.08.2009. In pursuance thereof, the BDA held an enquiry and thereafter, passed an order and issued an Endorsement dated 27.08.2009 thereby confirming that the order of the revocation / canceling the allotment and conditional Sale Deed standing in the name of Sri.Srivatsan Rangachari is in accordance with law and further it was held that the entire allotment and so called sale transaction in favour of Eight defendant is a concocted, fabricated and forged document. The plaintiffs having been appraised of the facts in issue and more so having learnt from the perusal of the documents relating to the suit property coupled with the revenue records standing in the name of Sri.K.N.Krishna Murthy and having been satisfied with the marketable title of the plaintiffs' vendor bonafide and in good faith purchased the suit property as stated supra, thereby derived all the rights, title and interest including possession thereby having an absolute right of disposition.
9 O.S.2990/2010
Such being the fact, 7th defendant supposed to have filed Writ Petition before the Hon'ble High Court of Karnataka assailing the order / Endorsement issued by the BDA dated 11.02.2010. The defendant No.7 in the meanwhile, came to know the Sale Deed in favour of plaintiffs has impleaded them as party respondents to the Writ Petition. While the matter stood thus, the plaintiffs in order to further ascertain and confirm their title and also to more sure and confirm that there is no other illegal and fraudulent entries and the transaction as relating to the suit property, applied Encumbrance Certificate in respect of the suit property before the jurisdictional Sub-Registrar. On obtaining the certified extracts, it was learnt that one Smt.Vijayalakshmi D/o. B.Krishna Urs claiming herself to be allottee from the BDA has executed a registered Sale Deed in her favour dated 03.01.1994 is supposed to have conveyed the property in favour of Gibu Abraham Mathew S/o. P.A. Mathew under a document dated 19.10.2005. From the perusal of said certified copy of Encumbrance Certificate, the transaction relating to the suit property as 10 O.S.2990/2010 on from 1988, it could be seen that the BDA has executed a Lease-cum-Sale Agreement in favour of Sri.K.N.Krishna Murthy. It could be seen from the Encumbrance Certificate that the Lease-cum-Sale Agreement is supposed to have been entered into between BDA and one Sri.Srivatsan Rangachari dated 09.05.1990 in respect of suit property, there is a deed of cancellation executed by the BDA dated 09.05.1990 followed by an execution of the conditional Sale Deed by the BDA in favour of Sri.Srivatsan Rangachari dated 16.05.1990 after lapse of 6 days, Srivatsan Rangachari in turn is supposed to have conveyed the property in favour of C.Ramesh-7th defendant under a registered document No.BNG(U)- Bengaluru (S)/454/2005- 06, dated 06.04.2005, under Possession Certificate dated 28.06.1981 and in pursuance thereof, the 4th defendant is supposed to have sold the suit property on the strength of Possession Certificate in favour of Gibu Abraham Mathew under a document dated 19.10.2005.
11 O.S.2990/2010
In order to prove and establish that they have purchased the suit property from their lawful owners a copy of the Lease-cum-Sale Agreement executed by the BDA in favour of Sri.K.N.Krishna Murthy is produced. In pursuance of said Lease-cum-Sale Agreement, the BDA has executed an absolute Sale Deed in favour of Sri.K.N.Krishna Murthy under a registered Sale Deed dated 20.08.2007 and he got Khata of the property transferred in his name and paying taxes. He has a good marketable title and therefore, the plaintiffs bonafide and in good faith purchased the suit property from him as he was the absolute owner and in lawful possession of the same.
From the perusal of the documents pertaining to the suit property, it could be made out that the defendants No.4 to 7 in order to make wrongful gain and more so by practicing fraud have got up documents in collusion with each other so as to suit their selfish ends. Therefore, the plaintiffs being left without any remedy approached the defendants to request and demand them to have the 12 O.S.2990/2010 entries cancelled / revoked from the registers of the defendants No.1 to 3 as they are neither the lawful owners nor have any manner of right or interest over the property.
As the defendants No.4 to 8 did not take any steps to initiate suitable action to have the entries deleted in the registers of the defendants No.1 to 3 and so also the entries found in the Encumbrance Certificate relating to the property, plaintiffs left without any alternative issued notice dated 23.02.2010 to the defendants No.1 to 3 detailing the above stated facts and copies of the same were forwarded to the defendants No.4 to 7 calling upon them to take suitable steps to have their names deleted / cancelled in the Encumbrance Certificates relating to the suit property. The notice sent to the authorities has been duly received and notice sent to the defendants No.4 to 6 has been returned unserved and notice forwarded to defendant No.8 has been duly served. Inspite of issuance of notice to the defendants, the defendants being authorities in law to initiate action for deletion and 13 O.S.2990/2010 rectification of fraudulent entries in their registers despite the fact that two months notice was given to the defendants No.1 to 3, so also to the defendants No.4 to 7, they have not complied with the just and reasonable request of the plaintiffs. Therefore, the plaintiffs being absolute owners and in actual physical possession of the suit property filed the suit for judgment and decree for declaration to declare that the entries found in Encumbrance Certificate pertaining to the suit properties are concocted, fabricated and not binding on them and be declared as null and void as found in items No.1 to 7 pertaining to the period 01.04.1987 to 18.12.2007, for period 27.11.2008 pertaining to the transaction as between Vijayalakshmi and Gibu Abraham Mathew, the entries as regarding the transaction between BDA , Srivatsan Rangachari and so also the Sale Deed for cancellation entered in the registers between BDA Authority and K.M.Krishna Murthy and so also the sale transaction between BDA and Srivatsan Rangachari and the entries regarding sale transaction between Srivatsan 14 O.S.2990/2010 Rangachari and C.Ramesh by holding that the entries found in the registers of the defendants No.1 to 3 are fraudulent, collusive, fabricated and obtained by practicing fraud and not binding on them.
As the entries in the registers have been continued and as a result, they have been acting adverse and hostile to their interest, they have also sought for a consequential relief of Mandatory Injunction by way of direction to the defendants No.1 to 3 to delete / revoke the entries fraudulently got entered in the registers by the defendants No.4 to 7. Hence, the plaintiffs have filed the present suit. .3. The defendants No.4 and 5 did not appear before the Court inspite of Paper Publication and they placed exparte. In pursuance of suit summons, defendants No.1 to 3 appeared through learned District Government Pleader and defendants No.6 and 7 appeared through their respective counsels and filed their written statements. 15 O.S.2990/2010 .4. The defendants No.1 to 3 in their written statement stated that the suit is not maintainable in law and plaintiffs have no right to seek such reliefs. The plaintiffs have not approached the Court with clean hands and have suppressed the material facts. The plaintiffs have not made the State of Karnataka represented by its Principal Secretary, Revenue Department / Department of Registration as defendants and the suit is suffering from necessary and proper parties as well as mis-joinder and the same is not maintainable. These defendants have no comments regarding Para Nos.1 to 27 and they are put to strict proof of each and every averments. The defendants denied the averments made in Para-28, 33 and 34 of the plaint and they have to put strict proof of each and every averment. These defendants being authorities, in law are not vested with power and jurisdiction to initiate action for deletion and rectification of entries in their registers. As the Registering officer i.e., defendant No.3 is entrusted merely with functions of discharging the statutory duties of registering the documents under the Registration Act, in 16 O.S.2990/2010 accordance with Karnataka Registration Rules, 1965. The duties and functions of the Registering officer does not empower or authorize him to conclude issue or declare any order relating to binding nature of a document so registered together with the corresponding entries of such transactions in the indexes prescribed thereof. If the plaintiffs are aggrieved or affected with any bogus or false transactions or documents so registered and entries covered thereunder in the Encumbrance Certificate in question with regard to corresponding document, they are at liberty to initiate action or to prosecute the persons, who has injured their rights over the property in an appropriate proceedings before the Court of law. Registering officer cannot be made liable or held responsible for anything bonafide done or refused in his official capacity, his functions and duties are purely administrative in nature and bounded with the duties of preserving and safeguarding the records so registered in public interest after discharging and carrying out the statutory duties of registering such documents prescribed 17 O.S.2990/2010 before him for registration under the Registration Act by some person executing or claiming under the same. These defendants are ready to discharge their duties in accordance with law as well as obey the Court order. The defendants have no power to delete or cancel the entries made in Book No.1 with regard to registered document or to delete or remove the entry made in the indexes relating to Book No.1. The question of Registering Officer (including defendants No.1 to 3) deleting any entry either from the indexes of Book No.1 or the extracts there from contained in the Encumbrance Certificate by holding transaction covered by a registered instrument is illegal or void does not arise. These defendants are relied upon citation 1999 (6) Kar.L.J. 68. There is no cause of action and the cause of action is not proper. The plaintiffs have not paid sufficient Court fee and suit is suffering from non-payment of sufficient Court fee. The suit has not been filed within time and is barred by limitation because of the revenue entries made on 01.04.1987 and these defendants 18 O.S.2990/2010 are ready and discharge of their duties, obey order of the Court in accordance with law.
.5. The defendant No.6 in his written statement contended that the suit filed by the plaintiffs is false, frivolous, vexatious and same is not maintainable in law or on facts and filed with an intention to harass and coerce him into their illegal terms. The suit in the present form is misconceived and same is filed based on concocted documents to extract money illegally. There is no cause of action arose to file the suit and same is imaginary. The averments made in the plaint are bald, vague, lacks particulars, more so and no material placed to substantiate allegations made in the plaint and framing of the suit is defective. The suit is not valued properly and filed producing concocted documents along with cooked up stories in order to obtain favourable orders and to make illegal and unlawful gain. The averments made in Para-1 of the plaint do not require any explanation and averments made in Para-2 of the plaint are totally false. 19 O.S.2990/2010
He is the predecessor-in-title of the defendant No.7 having sold the property bearing site No.818 in his favour by way of registered Sale Deed dated 06.04.2005. The BDA had allotted site in his favour vide Allotment Letter dated 05.05.1990 and subsequent to the same, BDA had executed a Lease-cum-Sale Agreement dated 07.05.1990 and has issued Possession Certificate on 15.05.1990 and further executed a Conditional Sale Deed dated 16.05.1990 in his favour and he was put in physical possession of the same. Subsequent to execution of the said Sale Deed, he has obtained Khata Certificate from the BDA for the said site.
Earlier to these transactions, it is learnt that BDA had initially allotted the said site in favour of one Krishna Murthy vide Lease-cum-Sale Agreement dated 30.01.1988. However, as the said Krishna Murthy was not interested for the said site who had requested the BDA for allotment of alternate site and as per his request, the BDA had 20 O.S.2990/2010 cancelled the allotment of said site by executing the Cancellation Deed dated 07.05.1990.
He being the member in Seniority list of allotters maintained by the BDA, got the said site in his favour and from the date of issue of Possession Certificate dated 15.05.1990, he was in continuous peaceful possession and enjoyment of the said site till the execution of the Sale Deed dated 06.04.2005 in favour of the defendant No.7, where under possession was handed over to him. At no point of time there were any interference or dispute with respect to the said site by any person much less said Krishna Murthy or BDA. Only recently, the said Krishna Murthy and the plaintiffs alleged to be purchasers are intentionally creating the problem by making false allegations, which are far from truth and they are intentionally interfering with the possession and enjoyment of the defendant No.7 to make illegal gain. 21 O.S.2990/2010
He being the senior member in the list of allotters has got the allotment of the said site in his favour. Such being the case, the BDA seems to have executed unilateral Cancellation Deed dated 10.07.2007, wherein the recitals of the same states that the BDA has not allotted the said site in his favour, Lease-cum-Sale Agreement and conditional Sale Deed dated 16.05.1990, which were registered in his favour are illegal and executed fraudulently and he denies these allegations. Contrary to the above, BDA and said Krishna Murthy colluding with each other have cancelled the conditional Sale Deed dated 16.05.1990 vide Cancellation Deed dated 17.07.2007 unilaterally for illegal gains. The BDA has executed registered Sale Deed dated 20.08.2007 in favour of said Krishna Murthy with respect to said site, which is totally arbitrary, illegal and same is against the provisions of TP Act and the Registration Act and Rules. The BDA has unilaterally that too after lapse of 17 years without any notice to him has executed Cancellation Deed dated 10.07.2007 and same is opposed to the principles of 22 O.S.2990/2010 natural justice and Rule of law. The documents that have been conveyed by the BDA are genuine and there is no fraud involved in the same as he was in the priority list of the allotters. He has enjoyed the subject property and after completion of non-alienation period of 10 years and after lapse of 15 years from the date of allotment, he has sold the same in favour of the defendant No.7, who is presently in possession and enjoyment of the same and Khata also transferred by the BDA in his favour. The documents produced by the defendant No.7 clearly speak and evident that there is no illegality or fraud in getting the Sale Deed executed in his favour from the BDA.
The enquiry conducted by the BDA is illegal and not transparent as the same has been done in collusion with the said Krishna Murthy. The plaintiff being well aware of the facts stated above has taken advantage of the innocence and in collusion with the said Krishna Murthy and BDA has intentionally purchased the suit property and the said Krishna Murthy sold the same to the plaintiffs with 23 O.S.2990/2010 sole intention to harass, even though the Writ Petition is pending for adjudication before the Hon'ble High Court of Karnataka. This clearly demonstrates that said Krishna Murthy and BDA had done the above act just to get away from the misdeeds that they had done and to cover up their illegal acts of having created, concocted and bogus documents fraudulently. The said Krishna Murthy and BDA who gauged their bleak chances of winning the case before the Hon'ble High Court of Karnataka in WP No.5918/2010, have clandestinely sold the property to the plaintiffs thereby creating a third party right over the same. There is no cause of action and same is imaginary and prays to dismiss the suit with exemplary costs. .6. The defendant No.7 in his written statement denied the material averments / allegations of the plaint regarding K.N.Krishna Murthy being absolute owner in possession of the suit schedule property conveying the same in favour of the plaintiffs under registered Sale Deed dated 18.02.2010 including possession, BDA issuance of Endorsement dated 24 O.S.2990/2010 27.08.2009, BDA holding the allotment and so called sale transaction in his favour has concocted, fabricated and forged documents, plaintiffs bonafidely purchasing the suit property in good faith, the plaintiffs applying for Encumbrance Certificate, making Khata in the name of Krishna Murthy and he is paying tax, he sought for permission to put up residential premises, creating concocted, fabricated documents by practicing fraud, not taking steps to delete entries found in Encumbrance Certificate, non-compliance of notice, the sale transaction between defendant No.6 and him is fraudulent, collusive, fabricated and obtained by practicing fraud etc., However, this defendant admitted that schedule property is a vacant site in the layout formed by the BDA, allotment of said site in favour of Krishna Murthy, putting him in possession, execution of Lease-cum-Sale Agreement dated 29.01.1988, challenging the Endorsement of BDA dated 11.02.2010 before the Hon'ble High Court of Karnataka, impleading the plaintiffs as respondents No.6 and 7 in the Writ Petition.
25 O.S.2990/2010
Further this defendant contended that the suit of the plaintiffs is not maintainable in law and on facts and the reliefs sought by them cannot be granted in the absence of filing a comprehensive suit for declaration. The relief in the suit cannot be granted as it is hit by Order II Rule 2 CPC. Consequent to illegal sale in favour of the plaintiffs, Khata of the suit property has been changed in their names. The Khata Certificate, which is based on the illegal Sale Deed is a void document and it cannot be relied upon. He has put up compound wall and he is in actual physical possession of the suit site. Sri.Krishna Murthy himself executed a Cancellation Deed dated 07.05.1990, canceling the allotment of site in his favour and he ceased to be owner of the suit site and title over the property stood cancelled as long back as 07.05.1990. Hence, BDA executing the Sale Deed to him on 20.08.2007 for having complied with the alleged terms and conditions of allotment and Lease- cum-Sale Agreement is illegal. When the BDA itself conveyed suit site in favour of the 6th defendant on 16.05.1990 and the 6th defendant having sold the same in 26 O.S.2990/2010 his favour through registered Sale Deed dated 06.04.2005, the BDA has no right to execute the Sale Deed dated 20.08.2007 in favour of Krishna Murthy. When the Sale Deed dated 06.04.2005 is not cancelled, as on today, the same is still in force. The plaintiffs being subsequent purchasers would not derive any legal title over the suit property. Sri.K.N.Krishna Murthy was not the absolute owner in possession of the suit property and has no marketable title to the property. The plaintiffs have purchased the property with a view to harass him who is enjoying the suit property as an absolute lawful owner in possession. Smt.Vijayalakshmi D/o. D.Krishna Urs being not the owner of the suit property, the alleged Sale Deed executed by her in favour of P.A.Mathew is sham and void document. He had filed complaint two years ago against her before the Police and same is under investigation. The entries in records of the Registering Authorities pertaining to him were correct and question of taking steps for deletion of the same does not arise. The plaintiffs have no right to seek Mandatory Injunction. No cause of action has 27 O.S.2990/2010 been arisen as stated by the plaintiffs. The plaintiffs have not given particular date as to when they sought legal opinion relating to the suit property. The Court fee paid is insufficient and not paid as per the market value of the suit property.
The plaintiffs are not entitled for the reliefs sought as they are not lawful or absolute owners in possession of the suit property for the reason that the sale transaction in registered Sale Deed dated 06.04.2005 between the defendants No.6 and 7 have not been set aside by any competent Court of law or by the BDA even as on today. Hence, those entries in the Encumbrance Certificate are perfectly valid in law and they cannot be declared as fraudulent entries. The plaintiffs without challenging the said Sale Deeds, cannot seek the relief of declaration in respect of the entries made in the Encumbrance Certificate, which were made pursuant to execution of valid registered Sale Deeds. As long as the said Sale Deeds are in force and existence without having not been 28 O.S.2990/2010 set aside. The suit is not only barred by limitation, but also not maintainable. The plaintiffs have suppressed the material facts and are guilty of suppression veri suggestion falsi. The 7th defendant is lawful owner of the suit schedule property having purchased for valuable consideration. In pursuant of sale in his favour, Khata in respect of the suit property was transferred in his name and enjoying the same being in peaceful possession by paying taxes. The allotment and execution of Lease-cum-Sale Agreement in favour of K.N.Krishna Murthy came to be cancelled by execution of bilateral Deed of Cancellation dated 07.05.1990 and by virtue of the same, the property reverted back to the BDA. The schedule property was free from allotment and the BDA has re-acquired title and accordingly, allotted the same to the defendant No.6 and also executed Lease-cum-Sale Agreement dated 07.05.1990 in his favour followed with Possession Certificate dated 15.05.1990 and he was put in physical possession. Thereafter, the BDA has executed a conditional Sale Deed dated 16.05.1990 conveying the absolute title in 29 O.S.2990/2010 favour of said Srivatsan Rangachari in respect of the suit property. After completion of 15 years of non-alienation period, the defendant No.6 had became the absolute owner of the suit property and he sold the same in favour of this defendant through registered Sale Deed dated 06.04.2005 and he is in actual possession and enjoyment of the same till this day.
To the shock and surprise of this defendant, one unknown person came near the suit property and was proclaiming that the said property is available for sale through Brokers. This defendant sensing some foul play, began to enquire by applying for Encumbrance Certificate and he was shocked to see that the BDA had executed a Cancellation Deed dated 17.07.2007 bearing Document No.394/1990-91 dated 09.05.1990 executed by the BDA in favour of defendant No.6 canceling Lease-cum-Sale Agreement dated 30.01.1988 earlier made in his favour, the BDA has executed another Deed of Cancellation dated 17.07.2007 canceling the conditional Sale Deed dated 30 O.S.2990/2010 16.05.1990 executed by the BDA in favour of 6th defendant and the BDA itself had executed a registered Sale Deed dated 21.08.2007 in favour of Sri.K.N.Krishna Murthy conveying the said site to him. The unilateral Deed of Cancellation has no legal impact as the said conditional Sale Deed is not annulled by any competent Civil Court, same is opposed to Sec.32-A of the Indian Registration Act and provisions of Indian Contract Act. The said document of unilateral Cancellation Deeds cannot be relied upon as they do not convey any legal significance on the suit property and same is opposed to the provisions of Transfer of Property Act. The suit is absolutely barred by time. Any declaration has to be sought within 3 years from the date of execution of document. The plaintiffs or their vendor have no legal right to seek declaration as sought for by them after lapse of more than 17 years. The BDA has no authority to execute the Deed of Cancellation. Once allotment is made, the title is transferred in favour of Srivatsan Rangachari, again, the BDA is not having any power to withhold, withdraw or otherwise cancel the Deed 31 O.S.2990/2010 of Cancellation. The BDA has no title again to execute the Sale Deed dated 20.08.2007 in favour of Sri.K.N.Krishna Murthy, which is illegal and unenforceable in law. The plaintiffs do not derive or get any legal right on the suit property and they cannot be construed to be the lawful owners. The BDA had no authority to unilaterally cancel the Sale Deed and the order of the BDA canceling allotment made in favour of Srivatsan Rangachari- defendant No.6 is opposed to Sec.31, 32, and 32A of the Indian Registration Act and Sec.52 of the Transfer of Property Act. The officials of the BDA, the plaintiffs and their predecessor-in-title have formed an accomplice for playing fraud in creating fraudulent document to cause wrongful loss to him with a malafide intention to knock off the suit property. The act of the BDA being unilateral per se illegal and is in violation of the principles of natural justice. This defendant has questioned the illegal act of the BDA by filing a WP.No.14037/2008 before the Hon'ble High Court of Karnataka with a prayer to quash the decision of the BDA and the action pursuant thereto in execution of 32 O.S.2990/2010 the Cancellation Deed dated 10.07.2007 and execution of Sale Deed dated 20.08.2007 made in favour of Sri.K.N.Krishna Murthy. The said petition was allowed by the Hon'ble High Court of Karnataka and the action taken by the BDA in canceling the registered Sale Deeds was set aside and further liberty was reserved to the BDA to hold an enquiry in accordance with law and pass appropriate orders by affording opportunity to all the parties including this defendant. Thereafter, the BDA without properly conducting enquiry and considering the additional statement filed by this defendant, had once again reiterated its earlier order, which was set aside by the Hon'ble High Court. This defendant had questioned the authority of the BDA in conducting the enquiry as no person can be a Judge in his own cause. The rudimentary principles of law as enunciated by the Hon'ble Supreme Court in Gullapally Ramaswamy's case. Without considering the contentions raised by this defendant and burying the rudimentary principles of law, the BDA passed an order affirming its actions arbitrarily. Being aggrieved 33 O.S.2990/2010 by the said action of the BDA, the defendant No.7 has filed another Writ Petition in WP No.5918/2010 challenging the order dated 11.02.2010 passed by the BDA. The Hon'ble High Court, after hearing, passed an interim order dated 26.02.2010, restraining K.N.Krishna Murthy, the plaintiffs' vendor from encumbering and interfering with the peaceful possession and enjoyment of this defendant's suit site. This defendant has filed an IA in the said Writ Petition and got the plaintiffs herein impleaded and also obtained an interim order against them dated 31.03.2010 restraining both the plaintiffs from alienating the site in question and the said interim order is still in force. The execution of Sale Deed in favour of plaintiffs do not convey valid and legal right in their favour as the BDA had no power to convey any in favour of the vendors of the plaintiffs and the plaintiffs' vendor in turn will not similarly have any power to convey the suit property in favour of the plaintiffs. The said transaction per se illegal transaction and do not convey any legal significance and impact on the subject matter of the suit. When the BDA, plaintiffs' 34 O.S.2990/2010 vendor K.N.Krishna Murthy have no manner of right, title or interest in respect of the suit site, the plaintiffs cannot derive any better title through the Registration of Sale Deed in their favour. When they themselves do not have any legal right, they cannot seek declaration of entries made in the Revenue Records as null and void. Therefore, the suit filed by the plaintiffs is misconceived and the relief of declarations sought for cannot be granted and prays to dismiss the suit with exemplary costs.
.7. On the above pleadings, the following issues framed:
1. Whether the plaintiffs prove that they are the absolute owners and in possession of the suit schedule property as per the registered Sale Deed dated 18.02.2010 executed by their predecessor-in-title Sri.K.N.Krishna Murthy as alleged?
2. Whether the plaintiffs further prove that the said Krishnamurthy was allotted the suit property by virtue of an allotment by the BDA and in pursuance thereof a lease / Sale Agreement was executed in his favour on 29.01.1988 as alleged?
3. Whether the plaintiffs further prove that the BDA in pursuance of lease / Sale Agreement has executed an absolute Sale Deed dated 35 O.S.2990/2010 20.08.2007 in favour of K.N.Krishna Murthy as alleged?
4. Whether the plaintiffs further prove that the revenue records of the suit property stood in the name of their vendor K.N.Krishna Murthy as alleged?
5. Whether the defendant No.6 proves that he was allotted the suit site, followed by lease / Sale Agreement dated 20.08.2007 in his favour by canceling the allotment made in favour of K.N.Kirshna Murthy dated 07.05.1990 and that he had acquired valid title in respect of the suit property as alleged?
6. Whether the defendant No.7 proves that he has lawfully purchased the suit property from his predecessor-in-title the defendant No.6 under the registered Sale Deed dated 06.04.2005 and consequently his name has been entered in the registers of defendants No.1 to 3 as alleged?
7. Whether the plaintiffs further prove that the entries found in the registers of D.1 to 3 as entered by them in respect of sale transaction in favour of D.4 Smt.Vijayalakshmi and the sale transaction in favour of D.5 has been lawfully entered based on the registered documents in their favour as alleged?
8. Whether the D.6 and 7 further prove that BDA has not cancelled / revoked the allotment and so also the sale transaction in favour of D.6 and 7 as alleged by D.7?
9. Whether the plaintiffs further prove that the entries as found in the registers of D.1 to 3 pertaining to the allotment and sale transaction 36 O.S.2990/2010 as relating to defendants No.4 and 5 and referred to in the plaint are bogus and illegal entries obtained by fraud and hence, requires to be deleted by way of declaration and a consequential relief of mandatory injunction as alleged?
10. Whether the plaintiffs further prove that the allotment and also the sale transaction between defendants No.6 and 7 are bogus and fraudulent entries and the same requires to be cancelled by way of declaration as alleged?
11. Whether the plaintiffs further prove that they are entitled to the relief of Mandatory Injunction by way of direction to the defendants No.1 to 3 to delete entries as sought for the plaintiffs in the suit by holding that such entries have been obtained by fraudulent means based on forged and fabricated documents as alleged?
12. Whether the suit is bad for mis-joinder and non-joinder of parties as alleged by D1 to 3?
13. Whether the suit is barred by limitation as alleged by defendants?
14. Whether defendants No.1 to 3 and 7
further prove that the suit brought by the plaintiffs in the present form is not maintainable without seeking the relief of declaration for cancellation of Sale Deed as alleged?
15. Whether the defendant No.6 proves that he was lawfully allotted the suit property by virtue of the allotment from BDA as alleged? 37 O.S.2990/2010
16. Whether the defendant No.7 proves that he has lawfully purchased the suit property from D.6 under the registered Sale Deed dated 06.04.2005 for valuable consideration as alleged?
17. Whether the suit is not properly valued and the Court fee paid is insufficient?
18. Whether the plaintiffs are entitled to the relief of declaration as sought by them for deletion of the entries in the encumbrance pertaining to suit property in the records of defendants No.1 to 3 as prayed?
19. Whether the plaintiffs are entitled to the relief of Mandatory Injunction against defendants as prayed?
20. To what reliefs, if any, the parties are entitled?
.8. In support of the case, the plaintiff No.2 himself examined as PW.1, GPA holder of the 1st plaintiff examined as PW.2, got marked documents at Ex.P.1 to Ex.P.43 and closed the side. The defendant No.7 himself examined as DW.1, got marked documents at Ex.D.1 to Ex.D.22 and closed the side. The defendants No.1 to 3 and 6 have not adduced evidence on their behalf.
38 O.S.2990/2010.9. Heard arguments on plaintiffs' and defendant No.7's side, since no representation, arguments of defendants No.1 to 3 and 6' side taken as heard.
.10. My answers to the above Issues are:
Issue No.1 - in the affirmative.
Issue No.2 - do not survive for consideration. Issue No.3 - in the affirmative.
Issue No.4 - in the affirmative.
Issue No.5 - in the negative.
Issue No.6 - in the negative.
Issue No.7 - do not survive for consideration, since the same is covered in Issue no.9.
Issue No.8 - in the negative.
Issue No.9 - in the affirmative.
Issue No.10- in the affirmative.
Issue No.11- in the affirmative.
Issue No.12- in the negative.
Issue No.13- in the negative.
Issue No.14- in the negative.
Issue No.15- in the negative.39 O.S.2990/2010
Issue No.16- in the negative.
Issue No.17- already answered vide order dated 22.01.2015.
Issue No.18- in the affirmative.
Issue No.19- in the affirmative.
Issue No.20 - As per final order for the following:
REASONS .11. ISSUES No.1, 3 & 4: The plaintiffs contended that they are the absolute co-owners in possession of the suit schedule property having purchased under a registered Sale Deed dated 18.02.2010 executed by Sri.K.N.Krishna Murthy, who was allotted suit property by virtue of allotment by the BDA and in pursuant thereto, Lease-cum-Sale Agreement was executed on 29.01.1988 in his favour and Revenue Records stood in his name, etc. Per contra, the defendants No.6 and 7 denied the said contention of the plaintiffs and interalia contended that the suit property is allotted by the BDA in favour of 6th defendant vide Allotment Letter dated 05.05.1990, subsequent to the same, BDA has executed Lease-cum- 40 O.S.2990/2010 Sale Agreement on 07.05.1990, also issued Possession Certificate on 15.05.1990 and further executed conditional Sale Deed dated 16.05.1990 in favour of defendant No.6 and put him in physical possession and thereafter, 6th defendant has sold the same property in favour of 7th defendant vide Sale Deed dated 06.04.2005 with handing over possession, 7th defendant is owner in possession and enjoyment of the same, Khata transferred in his name, etc. .12. To substantiate respective contentions of the parties, the plaintiff No.2 who examined as PW.1 in his affidavit evidence stated regarding plaintiffs jointly purchasing the schedule property through registered Sale Deed dated 18.02.2010 from Sri.K.N.Krishna Murthy, transferring Revenue Records in their names, allotment of suit property to their vendor by the BDA, execution of Lease-cum-Sale Agreement in his favour on 29.01.1988, Revenue Records standing in his name and thereafter, BDA executing registered Sale Deed dated 20.08.2007 in his favour, etc., by reiterating the averments of the plaint. 41 O.S.2990/2010
The General Power of Attorney of plaintiff No.1 who examined as PW.2 and also stated regarding plaintiffs jointly purchasing the schedule property through registered Sale Deed from Sri.K.N.Krishna Murthy, Revenue Records transferring in their name, etc. .13. Per contra, the defendant No.7 himself examined as DW.1, who in his affidavit evidence stated that the plaintiffs do not derive any legal right on the suit property and they cannot be construed as a lawful owners, BDA, plaintiffs' vendor Sri.K.N.Krishna Murthy have no manner of right in respect of the suit property and the plaintiffs cannot derive any better title through the Registration of Sale Deed in their favour, etc. .14. The plaintiffs have produced registered Sale Deed dated 18.02.2010 at Ex.P.9, which supports their contention that they have purchased the suit schedule property from their vendor Sri.K.N.Krishna Murthy and they 42 O.S.2990/2010 are in possession of the same. The plaintiffs have produced Certified copy of Sale Deed dated 20.08.2007 at Ex.P.1, which supports their contention that in pursuance of Lease-cum-Sale Agreement, the BDA has executed absolute Sale Deed dated 20.08.2007 in favour of Sri.K.N.Krishna Murthy. The plaintiffs also produced Khata Certificate at Ex.P.3, Khata Extract at Ex.P.4, Tax Paid Receipt at Ex.P.5, which shows that Khata in respect of the suit property stood in the name of Sri.K.N.Krishna Murthy and he has paid the taxes. Further the plaintiffs produced Tax Paid Receipts at Ex.P.10, Khata Certificate at Ex.P.12, Khata Extract at Ex.P.13, 3 Tax Paid Receipts at Ex.P.14 to Ex.P.16 and these documents shows that Khata standing in their name and they are paying the taxes in respect of the schedule property. Further the plaintiffs have produced an Endorsement issued by the BDA at Ex.P.8, wherein the Authority stated regarding allotment of suit site and execution of Sale Deed by the BDA in favour of Sri.K.N.Krishna Murthy. The defendant no.7 has not produced satisfactory supporting documentary evidence to 43 O.S.2990/2010 show his possession over the suit site as on the date of suit. The evidence of PW.1 coupled with the above referred documentary evidence go to show the plaintiffs purchasing the schedule property through registered Sale Deed from Sri.K.N.Krishna Murthy, allotment of the suit site by the BDA in favour of Sri.K.N.Krishna Murthy followed with Lease-cum-Sale Agreement and execution of absolute Sale Deed dated 20.08.2007 in favour of Sri.K.N.Krishna Murthy and Revenue Records stood in his name. Hence, the plaintiffs have proved that they are the absolute owners in possession of the suit property as per the registered Sale Deed dated 18.02.2010 executed by Sri.K.N.Krishna Murthy in pursuance of Lease-cum-Sale Agreement, the BDA has executed absolute Sale Deed dated 20.08.2007 in favour of Sri.K.N.Krishna Murthy and Revenue Records of the suit property stood in his name, accordingly, I answered Issues No.1, 3 and 4 in the affirmative.44 O.S.2990/2010
.15. ISSUE NO.2: The defendants No.6 and 7 have not denied the allotment of site and in pursuance of the same, BDA executing Lease-cum-Sale Agreement in favour of Sri.K.N.Krishna Murthy on 29.01.1988. Hence, this issue does not survive for consideration.
.16. ISSUES NO.5, 6, 8, 9, 10, 11, 15 & 16: As these Issues are connected to each other, I have taken all together for discussion for the sake of convenience and to avoid repetition.
The defendants No.6 and 7 contended that the BDA has allotted suit site No.818 in favour of defendant No.6 vide Allotment Letter dated 05.05.1990, subsequent to the same, BDA has executed Lease-cum-Sale Agreement on 07.05.1990, also issued Possession Certificate on 15.05.1990 and further executed conditional Sale Deed dated 16.05.1990 in favour of defendant No.6 and put him in physical possession, the defendant No.7 has lawfully purchased the suit property from the defendant No.6 under a registered Sale Deed dated 06.04.2005 and his 45 O.S.2990/2010 name entered in the registers, BDA has not cancelled the allotment and sale transaction of defendants No.6 and 7, the defendant No.7 is the owner in possession of the same and the entries in the registers of defendants No.1 to 3 and Encumbrance Certificate cannot be cancelled or revoked, etc. Per contra, the plaintiffs contended that entries found in registers of defendants No.1 to 3 entered in respect of the sale transaction in favour of defendants No.4 and 5, so also, the sale transaction between the defendants No.6 and 7 are bogus and illegal, fraudulent entries and same are declared as null and void and are liable to be deleted or revoked, etc. PWs.1 and 2 in their affidavit evidence stated regarding entries in respect of sale transaction of defendants No.4, 5, defendants No.6 and 7 on the basis of concocted documents and fraudulent transaction and have to be deleted, etc. Per contra, the defendant No.7/ DW.1 in his affidavit evidence stated regarding purchase of the suit site from defendant No.6 through registered Sale Deed 46 O.S.2990/2010 dated 06.04.2005, initially allotment of suit site to one Sri.K.N.Krishna Murthy by the BDA under Lease-cum-Sale Agreement dated 30.01.1988, later on, Cancellation of the said allotment and Lease-cum-Sale Agreement under a bilateral Deed of Cancellation dated 07.05.1990, allotment of the same in favour of defendant No.6, execution of Lease-cum-Sale Agreement in his favour on 07.05.1990, issuance of Possession Certificate, thereafter, BDA executed conditional Sale Deed dated 16.05.1990 conveying title in favour of Srivatsan Rangachari and after completion of non-alienation period, the defendant No.6 becoming the absolute owner, alienating the same in his favour, revenue entries changing in his name and his physical possession of the same, the BDA has no legal authority to execute the Deed of Cancellation and also to execute the Sale Deed in favour of Sri.K.N.Krishna Murthy, etc. .17. The defendant No.7 has produced, Certified copy of Sale Deed dated 06.04.2005 at Ex.D.2, the Allotment 47 O.S.2990/2010 Letter dated 05.05.1990 at Ex.D.3, Certified copy of Lease-
cum-Sale Agreement dated 17.05.1990 at Ex.D.4, Possession Certificate dated 15.05.1990 at Ex.D.6, Khata Patra dated 25.05.1990 at Ex.P.10, Khata Certificate dated 01.03.2005 at Ex.D.11, Khata Certificate dated 14.12.2006 at Ex.D.12, Khata Extract dated 14.12.2006 at Ex.D.13. Khata Registration Extract dated 26.02.2005 at Ex.D.19, 3 Tax Paid Receipts at Ex.D.20 to Ex.D.22. Though, these documents supports the contention regarding the defendant No.7 purchasing the schedule property through registered Sale Deed from the defendant No.6-Srivatsan Rangachari, allotment of site, execution of Lease-cum-Sale Agreement, issuance of Possession Certificate, execution of conditional Sale Deed in favour of Srivatsan Rangachari, Khata standing in the name of Srivatsan Rangachari, after the purchase, Khata in his name and payment of tax, but the plaintiffs contended that there was no allotment in favour of Srivatsan Rangachari and documents executed by the BDA in his favour are concocted, fabricated and forged documents, etc. Further the plaintiffs have 48 O.S.2990/2010 produced Certified copy of Deed of Cancellation dated 10.07.2007 at Ex.P.17 and one more Certified copy of Cancellation Deed dated 10.07.2007 at Ex.D.18, wherein the BDA has cancelled the Lease-cum-Sale Agreement in the name of Srivatsan Rangachari and also the document illegally so registered on 09.05.1990 in the name of Sri.K.N.Krishna Murthy and also stated regarding non- allotment of site in favour of Srivatsan Rangachari and allotment of site in favour of Sri.K.N.Krishna Murthy, the Srivatsan Rangachari illegally and fraudulently got executing the documents with an intention to grab the property and to cheat the BDA as well as its genuine allottee, etc. The defendant No.6 who claiming to be the allottee and right over the site has not entered into witness box and to depose the case and as such a presumption would arise that the case as set up by him is not correct. .18. Further defendant No.7 contended that BDA has no authority to unilaterally cancel the Sale Deed executed in favour of the defendant No.6, same questioning by filing 49 O.S.2990/2010 Writ Petition in WP.No.14037/2008 before the Hon'ble High Court of Karnataka, allowing the said Writ Petition reserving to the BDA to hold an enquiry in accordance with law and pass an appropriate orders by affording opportunity to all parties, thereafter, the BDA without properly conducting enquiry, once again, reiterating the earlier order, passed order dated 11.02.2010 affirming its action arbitrarily, being aggrieved by the same, filing another WP.No.5918/2010, etc. PW.2 in his evidence also stated regarding defendant No.7 filing Writ Petition in WP No.5918/2010 before the Hon'ble High Court of Karnataka, dismissal of the same on 25.01.2011, the defendant No.7 filing Writ Appeal before the Hon'ble High Court of Karnataka in WA.No.2759/2011(BDA) and dismissal of the said appeal by an order dated 04.02.2015, against the said order, defendant No.7 preferring Special Leave Petition in SLP No.20967/2015 before the Hon'ble Supreme Court of India and dismissal of the same by an order dated 19.08.2015, etc., and also produced the certified copy of order passed in WP.No.5918/2010 at Ex.P.20, certified 50 O.S.2990/2010 copy of judgment in WA.No.2759/2011 (BDA) at Ex.P.29, certified copy of Record of proceedings of the Hon'ble Supreme Court of India at Ex.P.30 and the same are supports the above contention of the plaintiffs. DW.1 in his cross-examination also admitted that he had filed a Writ Petition No.5918/2010 and same was dismissed on 25.01.2011, he had preferred a Writ Appeal No.2759/2011(BDA) and same was dismissed on 04.02.2015, he had preferred SLP No.20967/2015 before the Hon'ble Supreme Court of India and it came to be dismissed. During the cross-examination of DW.1 was put a question that " In the above Court proceedings it is held that the allotment and Sale Deed in favour of Srivatsan Rangachari and Sale Deed in my favour are bogus, what do you say? and he answered that Sale Deed in his favour is not held as bogus", but has not denied the bogus Sale Deed in favour of Srivatsan Rangachari as suggested.
51 O.S.2990/2010.19. The learned counsel for the plaintiffs during the course of arguments submitted that the plaintiffs are the lawful owners in possession of the suit property having purchased through the true allottee, the other persons who claims to be owners through registered Sale Deeds with regard to their property, in such a situation, the plaintiffs have appropriate course to file a suit for declaration in respect of the entries and consequential reliefs and also relied upon a decision reported in AIR 2000 Karnataka 46, wherein their Lordships held that:
"10. In view of the above, when a person who claims to be the owner or a person interested in an immovable property, finds that some one else has executed and registered a Sale Deed or other deed in regard to his property, claiming to be the owner or a person interested in the property, the appropriate course for him is to file a suit for declaration and consequential reliefs."
Per contra, the learned counsel for the defendant No.7 during the course of arguments submitted that BDA 52 O.S.2990/2010 has no power to unilaterally cancel the Sale Deed, once, the Sale Deed is executed, it has no right over the same and it cannot reconvey the said property in favour of others, the deed can be cancelled only as mentioned in Sec.31 of the Registration Act, the unilateral Cancellation of the Sale Deed in favour of Srivatsan Rangachari is illegal opposed to law and it cannot be relied upon and also relied upon the following decisions reported in:
ILR 2008 Karnataka 2245, wherein their Lordships held that:
"In the case of a Sale Deed executed and registered the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and Registration of a Sale Deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent or Agreement between the purchaser and the vendor, the said Sale Deed cannot be annulled. If the purchaser wants to give back the property, it 53 O.S.2990/2010 has to be by another deed of conveyance. If the deed is vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties agreeing by mutual consent to cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31` and other provisions of the Specific Relief Act, 1963. Therefore, the power to cancel a deed vests with a Court and it cannot be exercised by the vendor of a property."
AIR 2011 Madras 66, wherein their Lordships held that:
"(C) Transfer of Property Act (4 of 1882), S.54
- Registration Act (16 of 1908), Ss.17, 32 -
Specific Relief Act (47 of 1963) , S.31 - 'Sale' - Transfer by way of sale - Made absolute by transfer of property from vendor to purchaser
- Such transfer cannot be annulled as cancelled unilaterally by vendor by executing deed of cancellation - Deed of cancellation cannot be accepted for registration -
Cancellation of Sale Deed can be ordered only under S.31 of Specific Relief Act."
54 O.S.2990/2010AIR 2009 (NOC) 2445 (M.P.) wherein their Lordships held that:
"(B) Transfer of Property Act (4 of 1882), S.48
-Priority of right created by transfer - Same property transferred by same transferor twice
- Persons claiming right under such transferor on a different dates - Earlier transferee of property has priority of his transaction over the subsequent transaction of transfer of such property by same transferor - Earlier transferee had priority right to protect his possession of land on the strength of agreement, even against subsequent transferee - Subsequent transferee is also bound by terms and conditions of Sale Agreement of earlier transferee."
2009 (1) CTC 709 wherein their Lordships held that:
"Registration - Registration of cancellation deed of sale executed unilaterally without knowledge and consent of other parties to Sale Deed and without complying with S.32-A - Held, without jurisdiction, invalid and liable to be set aside."55 O.S.2990/2010
The facts and circumstances of the present case are not applicable to the above cited decisions. In the instant case, the plaintiffs have filed this suit for declaration and consequential relief of Mandatory Injunction in respect of the entries in the records and Encumbrance Certificates and they are neither parties to the deed in question nor they claimed title through the defendant No.6 or defendant No.7.
.20. Though the defendants No.6 and 7 claimed title to the schedule property, have not produced reliable documentary evidence in support of the said contention and on the contrary, from Ex.P.17 & Ex.P.18 Deed of cancellation shows regarding no allotment of site in favour of Srivatsan Rangachari and obtaining the documents from the BDA by playing fraud, etc. The evidence of PW.1 & 2 supported by the documentary evidence produced by them, but the evidence of DW.1 is not supported by the satisfactory documentary evidence. From the evidence of PW.1 and PW.2 coupled with documentary evidence 56 O.S.2990/2010 supports the contention of the plaintiffs, but the defendants No.6 and 7 have failed to prove their contentions as taken in the written statement. Hence, the defendant No.6 has failed to prove that he was allotted site followed by Lease-cum-Sale Agreement dated 20.08.2007 in his favour by canceling the allotment made in favour of K.N.Krishna Murthy dated 07.05.1990 and he has acquired valid title and the suit site was lawfully allotted in his favour by the BDA, the defendant No.7 failed to prove that he has lawfully purchased the suit property from the defendant No.6 under registered Sale Deed dated 06.04.2005 and his name has been entered in the registers of the defendants No.1 to 3, the BDA has not revoked the allotment and so also the sale transaction in favour of defendants No.6 and 7 and the defendant No.7 has lawfully purchased the suit property from the defendant No.6 for valuable consideration, on the contrary, the plaintiffs have proved that the entries found in the registers of defendants No.1 to 3 pertaining to the allotment and sale transaction as relating to defendants 57 O.S.2990/2010 No.4 and 5, so also the defendants No.6 and 7 are bogus, fraudulent entries, and they are entitled for mandatory injunction deletion of entries, accordingly, I answered Issue Nos.5, 6, 8, 15 & 16 in the Negative, Issue Nos.9, 10 & 11 in the affirmative.
.19. ISSUE NO.7: Does not survive for consideration, since same is covered in Issue No.9 and answered accordingly.
.21. ISSUE NO.12: The defendants No.1 to 3 in their written statement contended that the suit is bad for mis- joinder and non-joinder of necessary parties. Though contended the same, they have not adduced evidence in support of the said contention. Mere pleading without proving the same is not sufficient. Hence, the defendants No.1 to 3 have failed to prove that suit is bad for mis- joinder and non-joinder of parties, accordingly, I answered Issue No.12 in the negative.
58 O.S.2990/2010.22. ISSUE NO.13 : The defendants in their contended that the suit is barred by limitation. But, the defendants No.1 to 3 and 6 have not adduced evidence in support of the said contention. However, the defendant No.7, who examined as DW.1 stated regarding suit is barred by limitation, but the same is not satisfactory. Considering the facts that the plaintiffs said to have purchased the schedule property from Sri.K.N.Krishna Murthy through registered Sale Deed on 18.02.2010, the suit is not barred by limitation, accordingly, I answered Issue No.13 in the negative.
.23. ISSUE NO.14: The defendants No.1 to 3 and 7 contended that the suit is not maintainable without seeking the relief of declaration and cancellation of Sale Deeds. The defendants No.1 to 3 have not adduced evidence in support of the said contention. The defendant No.7 who examined as DW.1 in his evidence stated regarding the suit without seeking the relief of declaration of cancellation of Sale Deeds is not maintainable, etc. The plaintiffs not 59 O.S.2990/2010 being the parties to the Cancellation Deed or not claiming any title through defendant No.6 or defendant No.7, such contention of the defendants No.1 to 3 and 7 is untenable and they have failed to prove the same, accordingly, I answered Issue No.14 in the negative.
.24. ISSUE NO.17: Already answered vide order dated 22.01.2015.
.25. ISSUES NO.18 & 19: The plaintiffs have filed this suit against the defendants for judgment and decree to declare that the entries as found in the Encumbrance Certificate and so also the documents pertaining to the registering Authority relating to the suit property as found in Items -1 to 7 and so also, the entry as found in the Encumbrance Certificate for the period 01.04.2004 to 26.11.2008 as per the entry No.1 reflecting in the same transaction between Sri.Srivatsan Rangachari and C.Ramesh, who are the defendants No.6 and 7 are fraudulent entries and not binding on them, for Mandatory 60 O.S.2990/2010 Injunction by way of a direction to the defendants No.1 to 3 to delete / revoke the entries as found in the Encumbrance Certificate and all the records pertaining to the registering authority as relating to the transaction reflected in Items 1 to 7 for the period 01.04.1987 to 18.12.2007 and the entry as found for the period 01.04.2004 to 26.11.2008 as per the Encumbrance Certificate issued by the defendant No.3 as relating to the suit property and costs, etc. The plaintiffs having proved that the entries found in the Encumbrance Certificates pertaining to the suit property reflecting the same sale transaction between Srivatsan Rangachari and C.Ramesh are fraudulent entries, they are entitled for said declaratory relief and also entitled for Mandatory Injunction for deletion of such entries found in the Encumbrance Certificates. Hence, the plaintiffs are entitled for the reliefs of declaration and Mandatory Injunction as prayed, accordingly, I answered Issues No.18 & 19 in the affirmative.
61 O.S.2990/2010.26. ISSUE NO.20: In view of the reasons and discussion on the above Issue Nos.1 to 19, I proceed to pass the following:
ORDER Suit of the plaintiffs is hereby decreed as under:
It is declared that the entries as found in the Encumbrance Certificate and so also the records pertaining to the registering Authority relating to the suit property as found in Items -1 to 7 and so also, the entry as found in the Encumbrance Certificate for the period 01.04.2004 to 26.11.2008 as per the entry No.1 reflecting in the same transaction between Sri.Srivatsan Rangachari and C.Ramesh, who are the defendants No.6 and 7 are fraudulent entries and not binding on the plaintiffs.62 O.S.2990/2010
The defendants No.1 to 3 are hereby directed to delete / revoke the entries as found in the Encumbrance Certificate and all the records pertaining to the registering authority as relating to the transaction reflected in Items 1 to 7 for the period 01.04.1987 to 18.12.2007 and the entry as found for the period 01.04.2004 to 26.11.2008 as per the Encumbrance Certificate issued by the defendant No.3 as relating to the suit property.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 30th day of April 2016.) (JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
63 O.S.2990/2010ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 -N.Devaraju S/o. Sri.N.Narasaraju. PW.2 -Amit. R. Jain S/o. Sri.Rikhab Chand Jain. DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF:
Ex.P.1 Certified copy of Sale Deed dated 20.08.2007.
Ex.P.2 Public Notice.
Ex.P.2(a) Relevant portion in Ex.P.2.
Ex.P.3 Khata Certificate.
Ex.P.4 Khata Extract.
Ex.P.5 Special Notice.
Ex.P.6 Tax Paid Receipt.
Ex.P.7 Sanctioned plan.
Ex.P.8 Endorsement issued by BDA to Amit. R.G.
Ex.P.9 Registered Sale Deed dated 18.02.2010.
Ex.P.10 Tax Paid Receipt.
Ex.P.11 Reply Letter dated 03.03.2010 issued by
the Corporation.
Ex.P.12 Khata Certificate.
Ex.P.13 Khata Extract.
Ex.P.14 to Tax Paid Receipts.
Ex.P.16
Ex.P.17 Certified copy of Cancellation Deed dated
10.07.2007.
Ex.P.18 Certified copy of Cancellation Deed dated
10.07.2007.
Ex.P.19 Certified copy of Order passed in
WP.No.14037/2008 dated 27.08.2009.
Ex.P.20 Certified copy of order dated 25.01.2011
passed in WP.No.5918/2010.
Ex.P.21 to Encumbrance Certificates.
Ex.P.23
Ex.P.24 Endorsement dated 02.02.2012 with
64 O.S.2990/2010
copies of documents issued by the BDA.
Ex.P.25 Copy of letter dated 08.03.2010 issued by
the BDA to Amit. R.J.
Ex.P.26 Copy of proceedings of the BDA.
Ex.P.27 Canara bank remittance challan.
Ex.P.28 GPA.
Ex.P.29 Certified copy of judgment in Writ Appeal
No.2759/2011 (BDA).
Ex.P.30 Certified copy of Record of proceedings of
the Hon'ble Supreme Court of India.
Ex.P.31 Office copy of Legal Notice dated
23.02.2010.
Ex.P.32 to Postal Receipts.
Ex.P.37
Ex.P.38 to Postal Acknowledgments.
Ex.P.41
Ex.P.42 & Unserved Postal RPAD covers.
Ex.P.43
WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
DW.1 - C.Ramesh S/o. Chikkanna Gowda.
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
Ex.D.1 Gazette Notification dated 21.09.2011.
Ex.D.1(a) Relevant entry in Ex.D.1.
Ex.D.2 Certified copy of Sale Deed dated
06.04.2005.
Ex.D.3 Allotment Letter dated 05.05.1990.
Ex.D.4 Certified copy of Lease-cum-Sale
Agreement dated 07.05.1990.
Ex.D.5 Possession Certificate dated 15.05.1990.
Ex.D.6 Certified copy of Conditional Sale Deed
dated 16.05.1990.
65 O.S.2990/2010
Ex.D.7 Certified copy of Cancellation Deed dated
07.05.1990.
Ex.D.8 & Encumbrance Certificates.
Ex.D.9
Ex.D.10 Khata Patra dated 25.05.1990.
Ex.D.11 Khata Certificate dated 01.03.2005.
Ex.D.12 Khata Certificate dated 14.12.2006.
Ex.D.13 Khata Extract dated 14.12.2006.
Ex.D.14 to Remittance challans.
Ex.D.16
Ex.D.17 & Intimations of property tax due.
Ex.D.18
Ex.D.19 Khata Registration Extract dated
26.02.2005.
Ex.D.20 to Tax Paid Receipts.
Ex.D.22
(JINARALAKAR. B.L.)
XL Addl.City Civil & Sessions judge,
Bengaluru.
66 O.S.2990/2010
ORDER
(SRI.JINARALAKAR B.L.)
XL Addl.City Civil & Sessions judge,
Bengaluru.