Bangalore District Court
Sri. B.D. Dinesh vs Sri. Suresh C.B on 24 October, 2016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. VENKATARAMAN BHAT, B.Sc.,., LL.B. (Spl.)
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 24th DAY OF OCTOBER 2016
OS.NO.3364 OF 2016
PLAINTIFF/S SRI. B.D. DINESH
S/O B.P. DEVARAJU
AGED ABOUT 36 YEARS,
RESIDING AT No. C-22,
PWD QUARTERS, KAVAL
BYRASANDRA,
BANGALORE - 560 032.
(By M/s KBS Manian & Gnanesh H.
Kempanna, Adv.)
Versus
DEFENDANT/S SRI. SURESH C.B.
S/O CHIKKEGOWDA
AGED ABOUT 41 YEARS,
RESIDING AT NO. 161, 2ND 'A'
CROSS, 6TH 'A' MAIN ROAD,
NAGARABHAVI, BANGALORE - 560
079.
(By Sri. K.S. Advocate)
Date of Institution of the 28.04.2016
suit
Nature of suit Suit for mandatory
injunction.
2
O.S.No. 3364 / 2016
Date of commencement of 18.10.2016
recording of evidence.
Date on which judgment 24.10.2016
was pronounced.
Total Duration. Years Months Days
00 05 26
XXXVII ACCJ, BANGALORE
3
O.S.No. 3364 / 2016
JUDGMENT
This is a suit against the defendant for mandatory injunction directing the defendant to return the title deed in respect of the property bearing Site No. 132 formed out of Sy. No. 4 & 8 known as 'Jayasurya Nagar I Phase dated 19.12.2009 bearing Book No. 1, Document No. YAN-1-02239-2009-10 in C.D. No. YAND324 to the plaintiff.
2. The brief facts of the case are as follows.
Plaintiff is a Government servant employed in Karnataka Legislature Secretariate office, Vidhana Soudha, Bangalore. It is submitted that Employees Welfare, Karnataka Legislature Secretariate office, a society under the name and style of M/s Karnataka Legislature Secretariat Employees Housing Co-operative Society Limited. Since plaintiff is an employee he was allotted site No. 132 and the same was registered in favour of plaintiff on 19.12.2009. The said layout is known as 'Jayasuraya Nagar I Phase', situated at Gastikempannahalli, Yelahanka Hobli, Bangalore North 4 O.S.No. 3364 / 2016 Taluk. According to plaintiff, the defendant is total stranger to him. After the registration of sale deed, plaintiff entrusted the original title deed his elder brother Sri. Ramesh Kumar for safe custody as the plaintiff being a bachelor lived in Paying-Guest along with his other bachelor friends on sharing basis. To the surprise of the plaintiff, the plaintiff got received a notice from defendant dated 09.11.2015 claiming that plaintiff had executed an agreement of sale in respect of the said property and plaintiff was called upon to get ready for registration of the sale deed. Immediately the plaintiff approached his brother Sri. Ramesh Kumar and demanded return of his title documents. The plaintiff was referred to one advocate by name Sri. A.M.Maheshwarappa, who in turn informed the plaintiff that the original title deed is with the defendant. Immediately, plaintiff addressed a reply to the notice issued on behalf of the defendant on 10.12.2015 by denying execution of any agreement of sale and demanded return of original title deed within 7 days on receipt of the reply. However, defendant failed to 5 O.S.No. 3364 / 2016 handover the title deed to the plaintiff. Under these circumstances, the plaintiff was constrained to file this suit under Section 8 of Specific Relief Act with a prayer of immediate possession of the title deeds.
3. On being summoned, defendant appeared through his advocate. However, defendant failed to file any defence / written statement.
4. During the course of trial, plaintiff was examined as PW 1 and Ex.P1 to P6 got marked.
5. Heard arguments of learned counsel for plaintiff. Learned advocate for defendant remained absent.
6. In the light of the above contentions, now, the points that would arise for my consideration are as under.
1. Whether title deed dated 19.12.2009 is a movable property within the scope of Section 8 of Specific Relief Act?
2. Whether plaintiff proves ingredients of Section 8 of Specific Relief Act, 1963?
3. If so, whether plaintiff is entitled for the relief of immediate possession of title deed?
4. What order?
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O.S.No. 3364 / 2016
7. My finding on the above issues are as follows:
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: In the Affirmative.
Point No.4: As per final order for the following.
REASONS
8. POINT NO.1 & 2: For the sake of convenience and
also to avoid repetition of facts, I would like to discuss these two points together. These two points are inter- connected with each other in such a way that holding a common discussion is necessary.
9. Admittedly, this is a suit filed under Section 8 of Specific Relief At, 1963. It can be noticed that Sections 7 & 8 of the Specific Relief Act, 1963 provides methods for recovery of possession of specific movable property. Of course, there is difference between Section 7 & 8 of this Act. The differences are as under.
(i) Under Section 8, no suit can be brought against the owner, while under Section 7, a persona having a special or temporary right to present possession may bring the suit even against the owner of the property.
(ii) Under Section 7, a decree is for the return of movable property, or for the money value thereof in the alternative, while under Section 8 the decree is only for the return of the specific article.7
O.S.No. 3364 / 2016
10. Keeping in mind fundamental difference between Section 7 & 8 of Specific Relief Act, 1863, now, I would like to appreciate the facts in the case on hand. According to the plaintiff he is an employee working in Karnataka Legislature Secretariat, Vidhana Soudha. Ex.P1 is the certified copy of registered sale deed dated 19.12.2009. Plaintiff claims over site No. 132 in Jayasurya Nagar I Phase situated at Gastikempannahalli, Yelahanka Hobli, Bangalore by virtue of original sale deed dated 19.12.2009. On going through Ex.P1, it discloses that the said site number has been registered in favour of plaintiff. According to plaintiff after obtaining the original title deed, same was entrusted with his elder brother Sri. Ramesh Kumar for safe custody by the plaintiff. Thereafter plaintiff got received a notice issued on behalf of defendant dated 09.11.2015. As per notice plaintiff was called upon to register sale deed with respect to this property on the basis of the agreement of sale deed dated 17.04.2012. Plaintiff has firmly denied execution of this agreement of sale. On the other hand, according to 8 O.S.No. 3364 / 2016 plaintiff, defendant is stranger to him. It is pertinent to note that defendants failed to file any defence in the case on hand. Though he put appearance through his advocate, the defendant has not chosen to file any written statement. In other words, evidence of PW 1 is not challenged. As far as scope of Section 8 of Specific Relief Act 1963 is concerned, the following ingredients must coexist.
(1) the defendant has possession or control of the particular article claimed, (2) such article is movable property; (3) the defendant is not the owner of the article (4) the person claiming that is, the plaintiff, is entitled to immediate possession; and (5) the thing claimed is held by the defendant as the plaintiff's agent or trustee; or when compensation in money would not afford adequate relief for the loss of the thing claimed; or when it is extremely difficult to ascertain the actual damage caused by the loss of the thing claimed; or when the possession of the thing claimed has been wrongfully transferred from the claimant.
11. In the case on hand actual subject matter of the suit is sale deed dated 19.12.2009. of course, the plaintiff has shown the suit schedule property as site No. 132 of Jayasurya Nagar I Phase. It is settled principle of law that subject matter of plaint is most important rather 9 O.S.No. 3364 / 2016 than form. Under these circumstances, when the plaint discloses the subject matter as title deed dated 19.12.2009, for all practical purpose this is treated as suit schedule property. Now, the question for consideration is whether ingredients of Section 8 of Specific Relief Act, are fulfilled or not. The first condition is that the article must be a movable property. Section 7 and 8 of Specific Relief At, 1963 contemplates that the property must be specific movable property. Now the point for consideration is whether a title deed becomes a movable property. It can be noticed that Section 10 of Specific Relief Act, 1877 is equivalent to Section 7 of present Specific Relief At, 1963. This Section carried one illustration, which is referred as under.
"A bequeaths land to B for his life, with remainder to C. A dies. Be enters on the land, but C, without B's consent, obtains possession of the title deeds. B may recover them from C."
12. In the case on hand also, the plaintiff seeks immediate possession of title deed dated 19.12.2009. This illustration is referred for the purpose of title deed is the movable property for not. Second aspect is the 10 O.S.No. 3364 / 2016 plaintiff must be owner of the property. Admittedly, plaintiff is title holder of the sale deed dated 19.12.2009. When the plaintiff has purchased site No. 132, by virtue of this sale deed, it is needless to say that the plaintiff is the owner of the sale deed dated 19.12.2009, the Second condition is also fulfilled. 3rd condition is that when the thing claimed is held by defendant as agent or trustee of the plaintiff. In the case on hand, plaint averments are to the effect that plaintiff entrusted the sale deed with his elder brother Sri. Ramesh Kumar. It is not known how this sale deed came into possession of the defendant. If the said Ramesh Kumar handed over the sale deed into the hands of defendant, the position of defendant is as good as trustee of the article. This is illustrated by example referred to Section 10 of Specific Relief Act, 1877. It can be noticed that Section 11 of the Specific Relief Act is equivalent to the present Section 8 of Specific Relief Act, 1963. The illustration is extracted as under.
"A, proceeding to Europe, leaves his furniture in charge of B, as his agent during his absence. B, without A's authority, pledges the furniture to C, and C, knowing that B had no right to pledge the furniture, advertises, it for sale. C may be compelled to deliver the furniture to A, for 11 O.S.No. 3364 / 2016 he holds it as A's trustee. (Based on Wood vs. Rowcliffe, (1844) 3 Hare 304: 64 RR 303)."
13. In case, defendant has taken the sale deed without the consent of brother of the plaintiff, then naturally the possession of article becomes unlawful possession with the defendant. It is pertinent to note that plaintiff has given a reply to the notice issued by the defendant dated 09.11.2015. This reply is marked as Ex.P4. It can be noticed that the plaintiff has specifically averred in the reply to the effect that the defendant is in unlawful possession of title deed dated 19.12.2009. It is more relevant to note that the defendant has not chosen to deny the said allegations. Apart from this there is no defence on the part of the defendant by filing written statement. As per Order VIII Rule 5 (2) CPC when the defendant failed to place any defence it is lawful to the court to pronounce judgment looking into the facts of the case against the defendant except any person under disability. In other words, it can be considered as defendant admitted the plaint averments. Now, the question for consideration is whether the compensation 12 O.S.No. 3364 / 2016 in money would not have afford the plaintiff adequate relief for the loss under claim. When the plaintiff is deprived from holding the original title deed, it is beyond imagination how the loss will be caused to the plaintiff. As far as compensation in the money is concerned, there is presumption as per explanation (a) of Section 8 to the effect that the compensation in money would not afford the plaintiff adequate relief for the loss of thing claimed or as the case may be. Apart from this it would be extremely difficult to ascertain the actual damages caused by loss. For a moment let us presume that the plaintiff had executed an agreement of sale dated 17.04.2012, then it is a different issue. The remedy of the defendant is to file a suit for specific performance of contract. The fact remains that the original sale deed is with defendant. When plaintiff is able to discharge his burden to prove the necessary ingredients in the absence of any rebuttal presumption, it is held that the plaintiff has proved his case. Accordingly, I answer points No.1 and 2 in affirmative.
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O.S.No. 3364 / 2016
14. POINT No.3: Plaintiff is able to prove necessary ingredients of Section 8 of Specific Relief Act, 1963. Section 8 of this Act contemplates liability of a person in possession not as owner, to deliver to the person entitled to immediate possession. Defendant is not the owner of the sale deed. A ground is made out for the recovery of immediate possession of the said article by the plaintiff. Accordingly, I answer point No.3 in affirmative.
15. POINT No.4: In the result, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed with cost.
Defendant is hereby directed to hand over immediate possession of original title deed (sale deed) in respect of site No. 132 of Jayasurya Nagar I Phase, dated 19.12.2009 bearing Book No. 1, Document No. YAN-1-
02239-2009-10 in C.D. No. YAND324.
14
O.S.No. 3364 / 2016 Draw decree accordingly.
(Dictated to the Judgment Writer Online, corrected and then pronounced by me in open court, this the 24TH DAY OF OCTOBER 2016) (VENKATARAMAN BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. B.D. Dinesh Documents marked on behalf of the plaintiff/s:
Ex.P1 - Certified copy of sale deed dated 19.12.2009. Ex.P2 - Copy of notice dated 09.11.2015.
Ex.P3 - RPAD cover Ex.P4 - Reply notice dated 10.12.2015. Ex.P5 - Postal receipt Ex.P6 - Postal acknowledgement.
List of witnesses examined on behalf of the Defendant/s:
NIL Documents marked on behalf of the Defendant/s: NIL XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE. 15
O.S.No. 3364 / 2016 24.10.2016:
The learned advocate for the defendant filed advance application on 21.10.2016 along with written statement. It can be noticed that by the time the case was posted for judgment, defendant failed to file any written statement. Even judgment is ready to pronounce before the Court. That being the position, no ground is made out to accept written statement as contended by defendant. More over when the case is posted for judgment, it cannot be reopened for any other purpose. Under these circumstances, there is no merit in the said application. Accordingly, I proceed to pass the following.
ORDER Application filed under Section 151 of CPC by defendant to receive written statement is hereby rejected.
XXXVII ACCJ, Bangalore 16 O.S.No. 3364 / 2016 Judgment passed and pronounced in the open court (vide separate judgment). The operation portion of the order reads thus -
Suit of the plaintiff is
decreed with cost.
Defendant is hereby directed
to hand over immediate
possession of original title deed
(sale deed) in respect of site No.
132 of Jayasurya Nagar I Phase,
dated 19.12.2009 bearing Book
No. 1, Document No. YAN-1-
02239-2009-10 in C.D. No.
YAND324.
Draw decree accordingly.
XXXVII ACCJ, (CCH-38)