Bangalore District Court
Sri. Muralidhar S/O Shamdas vs Sri. S. Munegoda on 20 December, 2018
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. H. CHANNEGOWDA, B.Sc., LL.B.,
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 20th DAY OF DECEMBER 2018
OS.NO.1555 / 2009
PLAINTIFF/S SRI. MURALIDHAR S/O SHAMDAS
JETARAM, AGED ABOUT 50 YERS,
RESIDING AT No.3 & 4, EDEN HALL,
19TH FLOOR, WORLI, MUMBAI 400
018, REPRESENTED BY HIS GPA
HOLDER SMT. MANIBAI, W/O LATE
NANDALAL RAMDAS, AGED AB9UT
65 YEARS, RESIDING AT No. 68/1,
'CHARAN NIVAS'
SHESHADRIPURAM, BANGALORE -
560 020.
(Represented by Sri. Nagaiah, Adv.)
Versus
DEFENDANT/S 1. SRI. S. MUNEGODA, S/O LATE
SONNAPPA, AGED ABOUT 50
YEARS, RESIDING AT No. 20,
1ST CROSS, HANUMANTHAIAH
LAYOUT, SANJAYNAGAR,
BANGALORE - 560 094.
2. SRI. HANUMANTHEGOWDA,
S/O LATE MUNIYAPPA,A GED
ABOUT 55 YEARS, RESIDING
AT No. 140, 1ST CROSS,
NAGASHETTY HALLI,
BANGALORE - 560 094.
2 O.S.No.1555 / 2009
3. DR. T. SHOBHA W/O
THIMMEGOWDA, AGED
ABOUT 48 YEARS, 1 'N;
BLOCK, RAJAJINAGAR,
BANGALORE - 560 010.
(Defendant No.1 - Exparte
Defendant No.2 - M/s Kesvy & Co.,
Adv.)
Defendant No.3 - Sri.
N.R.Jayaprakash, Adv)
Date of Institution of the 04.03.2009
suit
Nature of the suit. Suit for declaration and
injunction.
Date of commencement of 16.07.2010
recording of evidence.
Date on which judgment 20.12.2018
was pronounced.
Total Duration. Years Months Days
09 09 16
XXXVII ACCJ, BANGALORE
3 O.S.No.1555 / 2009
JUDGMENT
The plaintiff has filed this suit against the defendants for judgment and decree to declare that he is the absolute owner of the suit schedule property and to declare that the General Power of Attorney dated 20.04.1993 alleged to have been executed by the plaintiff in favour of defendant No.1 is forged, fabricated by the defendant No.1 behind the back of plaintiff and not binding on the plaintiff, to declare that the sale deed executed by the defendant No.1 in favour of defendants No.2 and 3 on 06.07.1994 in respect of the suit schedule property as null and void and consequently, the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property along with cost of the suit.
1. In brief the case of the plaintiff is as under:
The suit schedule property is the part and parcel of land bearing Sy.No. 68/6 of Nagashetty Halli Vilalge, which was totally measuring 27 guntas originally belong to one Smt. Akkayyamma W/o Anjanappa. Smt. Akkayyama had sold her land measuring 27 guntas in favour of RMB Aradhya and CVL 4 O.S.No.1555 / 2009 Shasty through a registered sale deed dated 28.04.1972 registered on 02.06.1972. The purchasers RMB Aradhya and CVL Shastry have got converted the said land from agricultural to residential purpose from the office of the Deputy Commissioner, Bangalore District, Bangalore vide No.B.DKS.A.N.SR.6A927/603/1074-75. Subsequently, the purchasers RMB Aradhya and CVL Shasty have divided the land through the settlement deed dated 20.09.1975. Under the said settlement deed the schedule property has been allotted to the share of RMB Aradhya. The plaintiff had purchased the schedule property from RMB Aradhya through a registered sale deed dated 12.08.1981. The plaintiff is the absolute owner in possession and enjoyment of the suit site No.D carved in Sy.No. 68/6.
2. Further it is alleged that, the schedule property comes within the jurisdiction of Bangalore city Corporation, Bangalore, Ward No. 100 of Sanjaynagar. The plaintiff has paid betterment charge with the Bangalore city Corporation, Bangalore on 15.04.1997. Subsequently, due to some problems, the Bangalore city Corporation has not accepted further taxes nor 5 O.S.No.1555 / 2009 transferred the revenue entries of the schedule property in the name of the plaintiff. But the plaintiff being the absolute owner having purchased through the registered sale deed has been in uninterrupted possession and enjoyment of the suit schedule property by exercising the right of ownership thereof. The plaintiff has given representation to the Corporation Authorities on 28.11.2006 with a request to transfer the revenue records of the schedule property in his name which is pending for consideration.
3. Further it is stated that, due to his personal inconvenience, he authorized his power of attorney holder Smt. Mani Bai to look after and maintain the schedule property and has executed the power of attorney. On 28.11.2006 at about 4- 30 pm. When the plaintiff's General Power of Attorney holder went to the schedule property to get clean the same by labourers, by that time the defendant No.2 along with his supporters came to the schedule property attempted to tress- pass into the schedule property. Immediately, the plaintiff has lodged a complaint with the jurisdictional police against defendant No.2 and his supporters which yields no result and 6 O.S.No.1555 / 2009 the police have advised the plaintiff's General Power of Attorney holder to approach the civil court as the matter is civil in nature.
4. Further it is alleged that in the written statement the defendant No.2 has contended that the plaintiff has executed a General Power of Attorney in respect of the schedule property in favour of one Sri. S. Munegowda, authorizing him to deal with the schedule property i.e. the site No.D, as such the owner of site No.C Nandalal Ramdas has also executed a General Power of Attorneys in favour of Munegowda for site No.C. Based on the said General Power of Attorneys S. Munegowda (the defendant No.1), clubbed both the site Nos.C & D properties totally measuring 14634 sq.ft. bifurcated them into 2 portions which he named Site No.C for the property situated on the eastern portion and site No.D for the property on the western portion. The defendant No.1 S. Munegowda has sold the eastern portion of the property i.e. Site No.C to the defendant No.2 and the western portion of the property i.e. site No.D to the defendant No.3.
7 O.S.No.1555 / 2009
5. Further it is alleged that he filed an application under Order V Rule 17 of CPC vide I.A. No.6 for amendment of the pleading to state that the plaintiff has not at all executed the General Power of Attorney as alleged by the defendant No.2 in favour of defendant No.1 and also for declaration of plaintiff's title to the schedule property and to declare the alleged General Power of Attorney dated 20.04.1993 alleged to have executed by the plaintiff in favour of defendant No.2 and the sale deed executed by defendant No.1 on the basis of the forged, fabricated General Power of Attorney in favour of defendant No.2 and 3 on 06.07.2004 as null and void and one another application filed by the plaintiff under order I rule 10 (2) r/w Sec. 151 of CPC. This court has rejected I.A. 5 & 6 on 06.02.2008.
6. Further it is alleged that being aggrieved by the order passed on I.A. No. 5 & 6, he filed two writ petitions before the Hon'ble High Court of Karnataka in W.P. No.4064 /2008 and 4065 / 2008 (GM-CPC). The Hon'ble High Court has disposed off the said writ petitions by its common order dated 16.01.2009 granting liberty to the plaintiff to file a comprehensive suit with 8 O.S.No.1555 / 2009 no objection from the defendants. Hence, he has filed this suit for declaration and consequential relief of permanent injunction.
7. Further it is stated that he is the absolute owner of the schedule property and in possession and enjoyment of the same. The defendants are strangers to the schedule property. He has not at all executed any General Power of Attorney in favour of defendant No.1 at any point of time muchless on 20.04.1993. There is an earlier litigation between Nandalal Ramdas and defendant No.2 before the court in O.S. No. 6278/1998 in respect of B site. There is a suggestion to Nandalal Ramdas that the plaintiff has executed General Power of Attorney in favour of defendant No.1 on 20.04.1993 authorizing him to sell site No. C which is denied. The defendant No.1 who has forged, fabricated the General Power of Attorney alleged to have been executed by the plaintiff in respect of schedule property which has a cloud on the plaintiff's title to the schedule property i.e. site No.D dated 20.04.1993 behind the back of the plaintiff and has fraudulently executed the sale deed in favour of defendants No.2 and 3 through the registered sale deeds. The sale deeds are clandestine documents, fraudulently executed by the defendant No.1 in 9 O.S.No.1555 / 2009 favour of defendant No.2 and 3 in respect of the schedule property which has a cloud on the plaintiff's title to the schedule property.
8. Further it is alleged that he has been in possession and enjoyment of the suit schedule property from the date of its purchase till today.
9. Further it is alleged that the cause of action for the suit arose on 20.04.1993 when the defendant No.1 has fabricated the General Power of Attorney alleged to have been executed by the plaintiff behind the back of the plaintiff and on 06.07.1994 the alleged sale deed executed by the defendant No.1 in favour of defendants No.2 and 3 behind the back of the plaintiff and on 28.11.2006 when the defendant No.2 interfered with the plaintiff's possession of the schedule property and on 16.01.2009 when the Hon'ble High Court granted leave for the plaintiff to file a comprehensive suit and on 25.02.2009 when the defendants attempted to interfere with his possession of the schedule property which are within the jurisdiction of this Hon'ble Court.
10 O.S.No.1555 / 2009
Mainly among these grounds it is prayed to decree the suit as prayed.
10. After the service of suit summons, the defendants No.2 & 3 entered appearance through their counsel. The Defendant No.1 remained absent and hence he was placed exparte.
11. In the written statement the defendants No.2 has contended that the plaintiff seeking for the relief of declaration that the General Power of Attorney dated 20.04.1993 executed in favour of 1st defendant and also sale deed dated 06.07.1994 which is registered as document No.7199/1994-95 as null and void is not maintainable in as much as the suit filed by the plaintiff is after a lapse of 15 years and hence, it is hopelessly barred by limitation.
12. In the written statement it is stated that the plaintiff is not in possession of the suit schedule property and he lost the possession in the year 1994 when the sale deed dated 06.07.1994 came to be executed by the 1st defendant in favour of 2nd defendant conveying this site No.C in favour of 2nd defendant 11 O.S.No.1555 / 2009 and as such, until and unless proper and sufficient court fee is paid, the plaintiff cannot maintain the suit.
13. Further it is contended that he had purchased the site No.C, Katha No.314 and 315, House list No.422 and 423 under a registered sale deed dated 06.07.1994.
14. Further it is alleged that the sale deed executed by defendant No.1 in favour of 2nd defendant is for valuable consideration and the sale deed is also registered at the office of Sub-Registrar in the year 1994 and there is an entry in the encumbrance certificate in respect of the same. The plaintiff cannot plead ignorance nor contend that the General Power of Attorney is fabricated by the 1st defendant and he conveyed the property. There was an enquiry before the BBMP before effecting the Katha in favour of the 3rd defendant in respect of site No.D in which it is revealed that the General Power of Attorney is executed in favour of 1st defendant which shows that the plaintiff is well aware of the General Power of Attorney and also the sale deed of the suit schedule property in favour of him and hence, the suit filed by the plaintiff seeking for a 12 O.S.No.1555 / 2009 declaration that the General Power of Attorney dated 20.04.1993 is a fabricated document, has no basis.
15. Further it is contended that the defendant No.1 was the Power of Attorney holder in respect of site bewaring No.C & D formed in Sy.No. 68/6 of Nagashettihalli Vilalge. He had bifurcated site Nos. C and D as eastern portion and western portion and he purchased the site No. C (on the western portion) from the 1st defendant and the eastern portion property was purchased by the 3rd defendant. In view of the bifurcation of the site No.C and D he purchased a portion of site No.D and site No.C totally measuring 7003 sq.ft. and the 3rd defendant also purchased a portion of site No.C and D. In view of the same there is a change in the boundaries in respect of the site No.C and D. The plaintiff is well aware of the power of attorney and also sale of the suit property in favour of him and hence, the suit filed by the plaintiff seeking for declaration that the power of attorney dated 20.04.1993 is a fabricated document has no basis.
13 O.S.No.1555 / 2009
16. Further it is contended that the boundaries of the property purchased by him is facing towards road and BDA park on the northern side, towards south the remaining portion of site NO.s. C and D sold in favour of 3d defendant and towards western side, site Nos. A and B and on the eastern side portion of site No. D presently held by Smt. Shoba i.e. 3rd defendant. Therefore, the boundaries furnished in the plaint is as per the earlier sale deed.
17. In the written statement, the defendant No.2 has denied the plaint allegations that the plaintiff is the absolute owner of the suit schedule property and he has lost possession of the schedule property in the year 1994 itself.
18. In the written statement, the defendant No.2 had admitted the plaint allegations that the land bearing Sy.No. 68/6 of Nagashettihalli Vilalge, in all measuring 27 guntas, originally belonged to one Akkamma W/o Anjanappa and it is also true that the said Akkamma sold the said land in favour of RMB Aradhya and CLV Shastry under a registered sale deed dated 28.04.1974 registered on 02.06.1972. He has also admitted that 14 O.S.No.1555 / 2009 both of them after purchase of the land in Sy.No. 68/6 got converted the said land from agriculture to non-agricultural residential purposes. He has also admitted that Nandalal Ramdas and Muralidhar, have purchased the sites in Sy.No. 68/6 in the year 1981. Except admitting the said facts the defendant No.2 has denied the rest of the averments of the plaint as untenable and called upon the plaintiff for strict proof of the same.
19. In the written statement, the defendant No.2 has contended that he is the purchaser of portion of site No.C and D and put up compound wall with bricks long back and also got dug a borewell in a portion of the site Nos. C and D and he also appointed a watchman and the watchman is residing in his property and he had constructed watchman shed and taken power of connection of the same. Further it is contended that the plaintiff is not in possession of the suit schedule-C property and further the 3rd defendant has also put up construction and she has been running clinic.
15 O.S.No.1555 / 2009
20. In the written statement the 2nd defendant has contended that, the plaintiff cannot execute any power of attorney when there is already power of attorney executed in favour of 1st defendant and the 1st defendant has already executed a registered sale deed by virtue of the power of attorney dated 28.04.1993 and therefore the question of executing any power of attorney in favour of Smt. Mani Bai does not arise. The power of attorney dated 28.11.2006 is created only for the purpose of claiming right in respect of proton of the suit schedule -D property.
21. Further it is contended that, earlier Smt. Mani Bai has filed a suit in O.S. No. 6278 / 1998 and the said suit was came to be decreed. The said suit is only with respect to schedule-B property and the court while passing judgment and decree has clearly held that there is power of attorney executed in favour of 1st defendant by both the plaintiff and Smt.Mani Bai in respect of the suit -D property. The said Mani Bai had given vide publication for cancellation of the power of attorney in favour of 1st defendant in the year 1997. But in the meanwhile, the said power of attorney holder i.e. defendant No.1 had already sold 16 O.S.No.1555 / 2009 the sites in his favour as well as the 3rd defendant. Therefore, the question of challenging the power of attorney at this length of time does not arise and further when the act of execution of sale deed has already completed before cancellation of power of attorney, the question of cancellation does not arise. Further the sale deed executed in the year 1994 and the suit is hopelessly barred by limitation.
22. In the written statement, the 2nd defendant has contended that, he is in peaceful possession and enjoyment of the suit schedule property for the last 15 years, the question of trying to interfere with the alleged possession and enjoyment of the suit property does not arise and more over the plaintiff has suppressed the fact of existence of shed in the site -C and D and also fact of putting up of compound wall by spending sums of money and digging of borewell and taking power connection.
Mainly among these grounds it is prayed to dismiss the suit with costs.
23. In the written statement the 3rd defendant has stated that she is the absolute owner and in possession and enjoyment portion of eastern portion of the property bearing No.D, old 17 O.S.No.1555 / 2009 Katha No. 315 (Sy.No. 68/6), House Lit No. 423 measuring East to West 80 feet and North to South 45 feet situated at Nagasettihalli, Kasaba Hobli, Bangalore North Taluk. Further it is contended that, the plaintiff had executed a General Power of Attorney dated 20.04.1993 in favour of 1st defendant S. Munegowda appointing, nominating him as his agent by empower him to deal with the said property bearing No. D carved out of property No. 68/6 including the sale, mortgage or lease of the same to any person/s and also to receive the consideration and also to do other acts which are envisagd in the said General Power of Attorney. The said General Power of Attorney was neither revoked nor cancelled by the plaintiff.,
24. Further it is contended that the plaintiff represented by his General Power of Attorney holder S. Munegowda (1st defendant) by means of registered sale deed dated 06.06.1997 had sold the eastern portion of the 'D' property measuring East to West 80 feet and North to South 45 feet situated at Nagashettihalli Village in her favour and the remaining extent on the western side was sold in favour of 2nd defendant.
18 O.S.No.1555 / 2009
25. Further it is contended that she acquired the right, title and interest over the said property and the Katha of the said property stands in her name and she had paid betterment charges and taxes to the corporation and she is in possession and enjoyment of the said property.
26. Further it is contended that, she had put up about 1 sq.ft. ACC roof building in the year 2003 and she obtained electricity, telephone and water connection to the said building and the same was leased on rent to one Sri. Surendra Shetty. However, now the said tenant has vacated the said premises and handed over the vacant possession to her and she is in peaceful possession and enjoyment of the said property. She has also constructed watchman shed. All the facts are well within the knowledge of the plaintiff and his General Power of Attorney holder. However, suppressing the said facts the plaintiff has filed the present suit to coerce her and 2nd defendant with an intention to extract money.
19 O.S.No.1555 / 2009
27. Further it is contended that the present suit seeking only the relief of declaration without seeking relief of possession is not maintainable.
28. Further it is contended that the plaintiff himself had executed a General Power of Attorney in favour of S. Munegowda and the said S. Munegowda being the General Power of Attorney holder of the plaintiff had sold the eastern portion of the D- property in her favour and western portion of the D-property in favour of the 2nd defendant.
29. In the written statement, the defendant No.3 has denied the plaint allegations that the plaintiff is the owner and in possession and enjoyment of the suit property. Further it is contended that that the plaintiff had lost his right, title and interest over the suit property as the 1st defendant who was his General Power of Attorney holder had sold the suit property in her favour and of 2nd defendant by executing the registered sale deeds.
20 O.S.No.1555 / 2009
30. Further it is contended that late Mani Bai had filed suit in O.S. No.6278 / 1997 against the 2nd defendant before this court, wherein the 2nd defendant has categorically admitted the execution of General Power of Attorney in favour of S. Munegowda in respect of C-property carved out of Sy.No. 68/6. Further it is contended that the plaintiff is not in possession and enjoyment of the suit property and that the defendants No.2 and 3 are in possession and enjoyment of their respective portions of the property since from the date of purchaser till the date without any lit or hindrance from anybody including the plaintiff.
Mainly among these grounds it is prayed to dismiss the suit with costs.
31. On the basis of the pleadings of the parties, the then Presiding Officer of this court has framed the following issues:
ISSUES
1. Whether the plaintiff proves that she has purchased the suit schedule property under a sale deed dated 12.08.1981 and since then she is in exclusive possession over the same?
2. Whether the plaintiff further proves that the GPA dated 20.04.1993 alleged to have been executed by 21 O.S.No.1555 / 2009 the plaintiff in favour of defendant No.1 is forged and fabricated?
3. Whether the plaintiff further proves that sale deed executed by the defendant No.1 in favour of defendant No.2 and 3 on 06.07.1994 in respect of the suit schedule property is null and void?
4. Whether the plaintiff proves her lawful possession over the suit schedule property as claimed?
5. Whether the suit of the plaintiff for declaration is not maintainable without seeking the relief of possession?
6. Whether the plaintiff further proves that suit is barred by limitation?
7. Whether the plaintiff has got no cause of action to file the suit?
8. Whether the court fee paid by the plaintiff is insufficient?
9. Whether the plaintiff is entitled for the reliefs sought for?
10. What order or decree?
32. It is seen from the records that, the then Presiding officer of this court has framed issues on 17.06.2009, but if we peruse the issues based on the pleadings of the parties, it is seen that there are some typographical mistake crept in issue No. 1, 4, 6 &
7. Hence, it is just and necessary to correct the said typographical mistake by this court and the said mistake has 22 O.S.No.1555 / 2009 been corrected and after correction of the same the above issues are as under.
ISSUES
1. Whether the plaintiff proves that he has purchased the suit schedule property under a sale deed dated 12.08.1981 and since then he is in exclusive possession over the same?
2. Whether the plaintiff further proves that the GPA dated 20.04.1993 alleged to have been executed by the plaintiff in favour of defendant No.1 is forged and fabricated?
3. Whether the plaintiff further proves that sale deed executed by the defendant No.1 in favour of defendant No.2 and 3 on 06.07.1994 in respect of the suit schedule property is null and void?
4. Whether the plaintiff proves his lawful possession over the suit schedule property as claimed?
5. Whether the suit of the plaintiff for declaration is not maintainable without seeking the relief of possession?
6. Whether the defendants prove that suit is barred by limitation?
7. Whether the defendants prove that there is no cause of action to file the suit?
8. Whether the court fee paid by the plaintiff is insufficient?
9. Whether the plaintiff is entitled for the reliefs sought for?
10. What order or decree?
23 O.S.No.1555 / 2009
33. At the time of evidence, the Power of Attorney holder of the plaintiff by name Smt. Mani Bai W/o late Nandalal Ramdas examined herself as PW 1. The plaintiff has got marked as many as 19 documents as Ex.P1 to P19 and closed his side evidence.
34. On the other hand, the General Power of Attorney holder of defendant No.2 by name Sri. M. Anand examined himself as DW 1 and got marked the documents as Ex.D1 to D26 and closed his side evidence. The General Power of Attorney holder of defendant No.3 by name Dr. H. Thimmegowda examined himself as DW 2 and got marked the documents as Ex.D27 to D62 and closed her side evidence. Then the case posted for arguments.
35. Heard the arguments.
36. My findings on the above issues are as under:
Issue No.1 : In the Affirmative with modification Issue No.2 : In the Affirmative Issue No.3 : In the Affirmative Issue No.4 : In the Negative Issue No.5 : In the Affirmative Issue No.6 : In the Negative Issue No.7 : In the Negative Issue No.8 : In the Negative Issue No.9 : Partly in the Affirmative with modification. Issue No.10: As per final order for the following:24 O.S.No.1555 / 2009
REASONS
37. ISSUE No.1 to 4: As these four issues are inter-connected with each other, hence, I have taken up these four issues together for common discussion in order to avoid repetition of facts.
38. On perusal of the pleadings of the parties, it is seen that the following facts are not much in dispute between the parties.
The land bearing Sy.No. 68/6 of Nagashettihalli Village was totally measuring 27 guntas and the said land originally belongs to one Smt. Akkayyamma W/o Anjinappa. The said Akkayyamma had sold the said land measuring 27 guntas in favour of RMV Aradhya and CVL Shastri through a registered sale deed dated 28.04.1972. The purchasers RMV Aradhya and CVL Shastri have got converted the said land from agricultural to residential purpose from the office of Deputy Commissioner, Bangalore District, Bangalore. Thereafter, the purchasers RMV Aradhya and CVL Shastri have divided the land through settlement deed dated 20.09.1975. Under the said settlement deed the schedule property has been allotted to the share of 25 O.S.No.1555 / 2009 RMV Aradhya. The plaintiff had purchased the schedule property from RMV Aradhya through a registered sale deed dated 12.08.1988. Except admitting the said facts the defendant No.2 and 3 have denied the rest of the averments of the plaint as false and untenable.
39. So far as with respect to the facts in issue No.1 is concerned, DW1 who is none other than the General Power of Attorney holder of defendant No.2 has admitted in his cross examination at page No.22 that Nandalal Ramadas is the owner of C-property which is mentioned in Ex.D2 document. It is true that Muralidhar (present plaintiff) is the owner of site No.D. It is seen that the plaintiff has filed this suit with respect to site No.D carved in Sy.No. 68/6. Therefore, in view of the clear admission of DW 1 in his cross examination as stated above, it is not much in dispute that the plaintiff had purchased the suit schedule property under a registered sale deed dated 12.08.1981 and he is the owner of the suit schedule property.
40. In the written statement and also in the oral evidence the main contention of the defendant No.2 is that he purchased the 26 O.S.No.1555 / 2009 site No.C, katha No. 314 and 315 under a registered sale deed dated 06.07.1994 and the same was executed by the 1st defendant who is the Power of Attorney holder in respect of site No.C & D formed in Sy.No. 68/6 of Nagashettihalli Village and that the 1st defendant had bifurcated site No.C & D as eastern and western portion and site No.C & D on the western portion is purchased by him and the eastern portion was purchased by the defendant No.3. According to the 2nd defendant, in respect of the property which he purchased on 06.07.1994 the owner of the said property i.e. Nandalal Ramadas had executed Ex.D2 unregistered General Power of Attorney dated 20.04.1993 in favour of defendant No.1 and on the strength of the said document the defendant No.1 has sold the property under a registered sale deed dated 06.07.1994 to him.
41. So also, in the written statement and also in the oral evidence, the contention of the 3rd defendant is that the plaintiff had executed a General Power of Attorney dated 20.04.1993 in favour of 1st defendant S. Munegowda pertaining to property bearing No.D carved out of converted land in Sy.No. 68/6 of Nagashettihalli village and that the 1st defendant as a General 27 O.S.No.1555 / 2009 Power of Attorney holder had executed a registered sale deed dated 06.06.1997 in her favour pertaining to eastern portion of D-property measuring 80 x 45 ft. and the remaining western portion of the said property was sold in favour of 2nd defendant.
42. But, in the plaint and also in the oral evidence it is the contention of the plaintiff that he has not at all executed the alleged General Power of Attorney in favour of defendant No.1 at any point of time muchless on 20.04.1993 pertaining to the suit property and that the defendants are strangers to the suit property. Further it is contended that the defendant No.1 has forged, fabricated the alleged General Power of Attorney dated 20.04.1993 pertaining to the suit schedule property behind his back and fraudulently executed sale deed in favour of defendant No.2 and 3 and the said sale deeds are clandestine and fraudulent documents.
43. Therefore, in view of the rival contention of the parties with regard to the alleged General Power of Attorney dated 20.04.1993 alleged to have executed by the said Nandalal Ramadas and the plaintiff pertaining to the alleged property said 28 O.S.No.1555 / 2009 to have purchased by the defendant No.2 under sale deed dated 06.07.1994 and the alleged property said to have purchased by the defendant No.3 under a registered sale deed dated 20.04.1993 from the defendant No.1 as a General Power of Attorney holder of Nandalal Ramadas and the present plaintiff is the main controversy in the present case between the parties.
44. During the course of arguments the learned counsel for defendant No.2 would submits that in the plaint the plaintiff has alleged that the General Power of Attorney dated 20.04.1993 alleged to have been executed by him in favour of defendant No.1 is a forged and fabricated document. Therefore, in view of the above plaint averments, the burden lies on the plaintiff to prove that the General Power of Attorney dated 20.04.1993 is a forged and fabricated document. In this regard, the learned counsel for defendant No.2 has cited the following two decisions.
1. (2015) 8 SCC 672 - STATE OF MADHYA PRADESH VS. USHADEVI.
29 O.S.No.1555 / 2009
45. In the above cited USHADEVI's case, pertaining to the facts of that case, in para No. 33 of the judgment, the Hon'ble Supreme Court has stated as under.
"33........First coming to the issue of transfer of land to the Forest Department, it is settled law that parties are governed by their pleadings and the burden lies on the person who pleads to prove and further the plaintiff has to succeed basing on the strengths of his case and cannot depend upon the weakness of the defendant's case".........
46. In the above cited VASAVI CO-OPERATIVE HOUSING SOCIETY LIMITED AND OTHERS's case in para No.19 of the judgment, the Hon'ble Supreme Court has stated as under.
"19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited."
47. At this juncture, I have referred the recent decision of Hon'ble Supreme Court decided in Civil Appeal No. 7843 / 2009 dated 10.12.2018 - CHAIRMAN, BOARD OF TRUSTEE, SRIRAM MANDIR JAGTIAL KARIM NAGAR DISTRICT, A.P. VS. S. RAJYALAKSHMI (DEAD) & ORS.
30 O.S.No.1555 / 2009
48. In the above decision in para No. 19 of the judgment the Hon'ble Supreme Court has stated as under:
19. It is an established position of law that, the burden to prove ownership over the suit property is on the plaintiff. (See Corporation of City of Bangalore vs. Zulekha Bi and Ors.
(2008) 11 SCC 306). This court in the case of Parimal vs. Veena (2011) 3 SCC 545, held that:
19. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person.
The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
(emphasis supplied)"
49. In the present case, the defendant No.2 and 3 asserted that as per Ex.D2 General Power of Attorney dated 20.04.1993 Nandalal Ramdas had executed the said document in favour of defendant No.1 Sri. S. Munegowda pertaining to site bearing No.C carved out of land in Sy.No. 68/6. The plaintiff has also executed a General Power of Attorney dated 20.04.1993 in 31 O.S.No.1555 / 2009 favour of defendant No.1 S. Munegowda pertaining to his property i.e. present suit schedule property and on the strength of the said document, the defendant No.1 had sold the properties i.e. site No.C and D in favour of defendant No.2 and 3 respectively, and thereby the said Nandalal Ramdas and the present plaintiff have no right, title and possession over the said properties.
50. But the plaintiff has categorically denied the above contention of the defendant No.2 and 3 and according to the plaintiff he has not at all executed any such General Power of Attorney in favour of defendant No.1 at any point of time muchless on 20.04.1993.
Therefore, in view of the ratio laid down by the Hon'ble Supreme Court in the above referred recent decision in the case of S. RAJYALAKSHMI (DEAD) AND OTHERS's, the initial onus of proof lies upon the defendant No.2 and 3 in order to prove the fact that the said Nandalal Ramdas had executed the General Power of Attorney dated 20.04.1993 in favour of defendant No.1 pertaining to site No. C and on the same day the present plaintiff also executed another General Power of Attorney in favour of 32 O.S.No.1555 / 2009 defendant No.1 pertaining to the present suit schedule property (site No.D).
51. It is seen from the records that even though the defendant No.2 has contended that the defendant No.1 as a General Power of Attorney holder of late Nandalal Ramadas had executed the registered sale deed (Ex.D3) in favour of defendant No.2 pertaining to C-property out of converted land in Sy.No. 68/6 of Nagashettihalli Village, but in this case the defendant No.2 has not produced the alleged original General Power of Attorney dated 20.04.1993 alleged to have executed by late Nandalal Ramadas in favour of defendant No.1 pertaining to C-property. But the defendant No.2 has got marked the copy of the alleged General Power of Attorney dated 20.04.1993 as Ex.D2 in this case. In the evidence the defendant No.2 has not at all stated as to why he failed to produce the original document of Ex.D2 instead of producing the alleged copy i.e. Ex.D2.
So also, the defendant No.3 has produced only the Xerox copy of unregistered General Power of Attorney dated 20.04.1993 alleged to have executed by the present plaintiff in favour of defendant No.1 pertaining to D-property belong to the 33 O.S.No.1555 / 2009 plaintiff. As the said copy is only a xerox copy which is present on the file, the same is not got marked in this case. In the cross examination the General Power of Attorney holder of defendant No.3 i.e. DW 2 has stated that at the time of registration of Ex.D28 sale deed (sale deed of defendant No.3), as per the say of the authorities of office of the sub-Registrar they have given the original General Power of Attorney (alleged to have executed by the present plaintiff) to the office of the sub-Registrar along with Ex.D28 original sale deed, but thereafter they forgotten to get back the original General Power of Attorney. In the cross examination DW 2 had admitted that at the time of registration of Ex.D28 sale deed he was not participated, but his wife (3rd defendant) personally present at the time of registration in the office of Sub-Registrar.
52. In this regard during the course of argument the learned counsel for the plaintiff would submits that as DW 2 has admitted in his cross examination that at the time of registration of Ex.D28 sale deed he was not participated, but his wife (3rd defendant ) personally present at the time of registration in the office of Sub-Registrar, in such circumstances, DW 2 cannot 34 O.S.No.1555 / 2009 depose for the principal in respect of the matter which only principal (defendant No.3) can have personal knowledge and in respect of which the principal is entitled to be cross examined. The learned counsel for the plaintiff has placed reliance on the decision of the Hon'ble Supreme Court, reported in 2005 (1) KCCR 227 - JANKI VASHDEO BHOJWANI AND ANOTHER VS. INDUSIND BANK LIMITED AND OTHERS.
53. On the other hand, the learned counsel for defendant No.3 would submits that as per Section 120 of the Evidence Act in civil proceedings the husband can depose evidence on behalf of his wife as a General Power of Attorney holder and he is a competent witness.
54. As rightly submitted by the learned counsel for the plaintiff it is seen that in the cross examination DW 2 (husband of 3rd defendant and her General Power of Attorney holder) has stated that at the time of registration of Ex.D28 sale deed he was not participated, but his wife - 3rd defendant personally present at the time of registration in the office of the sub-Registrar, In such circumstances, DW 2 cannot depose evidence for the 35 O.S.No.1555 / 2009 principal (3rd defendant) in respect of the matter which only the principal had personal knowledge of the said facts in issue and in respect of which the principal is entitled to be cross examined.
In the above JANKI VASHDEO BHOJWANI AND ANOTHER VS. INDUSIND BANK LIMITED AND OTHERS's case while dealing with Order III Rules 1 & 2 CPC the Hon'ble Supreme Court has stated that, 'if the Power of Attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. The ratio laid down in the above decision is aptly applicable to the present case. In the circumstances, it is stated that Section 120 of the Evidence Act does not apply to the facts of this case.
36 O.S.No.1555 / 2009
Further, in the cross examination DW 2 has admitted that, generally at the time of receiving the document for registration, the concerned authority of the office of Sub- Registrar used to take the copy of General Power of Attorney and after verifying the original General Power of Attorney with the copy, they will return the original General Power of Attorney to the party. Further, in the cross examination DW 2 has stated that when they have given application to the office of the sub-Registrar to return the General Power of Attorney submitted by them at the time of registration of Ex.D28 sale deed, in this regard the concerned authority of the office of the sub-Registrar have given an endorsement that they have destroyed the said document. The said endorsement has been got marked in this case as Ex.D29. It is seen that this endorsement has been obtained after filing of the suit i.e. on 14.03.2018. In this document it has been mentioned that the other documents and General Power of Attorney which are mentioned in the application submitted to them by the applicant seeking to return the General Power of Attorney and other documents., on verification of the records, they (concerned authority of office of sub-Registrar) came to know that on 27.07.2009 the records are 37 O.S.No.1555 / 2009 already destroyed under "Destruction of old records". In this document the concerned authority of the office of the sub- Registrar have not at all mentioned that such original General Power of Attorney dated 20.04.1993 was received by them at the time of registration of Ex.P28 registered sale deed. Therefore, Ex.D29 document is not helpful to the case of the defendant No.3. If at all the defendant No.3 actually submitted the original alleged General Power of Attorney dated 20.04.1993 said to have executed by the plaintiff in favour of defendant No.1 along with Ex.P28 sale deed at the time of registration of the document to the office of Sub-Registrar, naturally, in such circumstances, the concerned authority used to give endorsement to the effect that they have received such original General Power of Attorney dated 20.04.1993 for verification along with Ex.P28 sale deed. But in the present case the defendant No.3 has not at all produced any such endorsement issued by the office of sub-Registrar in order to show that at the time of registration of Ex.P28 document, the concerned authority have received the said original General Power of Attorney, but thereafter they have not returned the said document. When the plaintiff has denied the execution of such alleged General Power 38 O.S.No.1555 / 2009 of Attorney dated 20.04.1993 in favour of defendant No.1 pertaining to D-property belongs to him, in such circumstances, heavy burden lies upon the defendant No.3 to produce the said original General Power of Attorney. Even the defendant No.2 has also not stated any proper reason as to why he failed to produce the said original of Ex.D2 document before the court. It is seen that Ex.D2 and the alleged General Power of Attorney said to have executed by the plaintiff in favour of defendant No.1 these two alleged General Power of Attorney as set up by the defendant No.2 and 3 in this case are the unregistered documents. In such circumstances, the defendant No.2 and 3 ought to have produced the original General Power of Attorney before the court to substantiate their contention. Whatever the reasons as stated by DW 1 and 2 in their evidence with regard to non- production of said two General Power of Attorney cannot be accepted for not producing such two original documents before the court.
55. During the course of arguments, the learned counsel for the defendant No.2 would submits that, as per Ex.D23 document the deceased Nandalal Ramdas had admitted that he 39 O.S.No.1555 / 2009 executed a General Power of Attorney in respect of Site No.C in favour of defendant No.1 S. Munegowda and he appointed him as his true and lawful attorney for the said property and the General Power of Attorney is dated 20.04.1993. But if we peruse the contents of Ex.D23 document, it shows that this document is only a Xerox copy but not the certified copy issued by the competent authority. As per this document, one N.K. Ravikumar had given application to the BBMP Bangalore under RTI Act, in respect of proceedings of hearing regarding Katha registration in respect of site No.B, C & D of Nagashettihalli Village in the chambers of the ARO Ganganagar, BBMP, Bangalore. As already stated, this alleged document is only a Xerox copy, but not the authenticated or duly certified copy of the original. Therefore, no value can be attached to the contents of Ex.D23 document and the same is not helpful to the case of the defendants.
56. During the course of arguments, the learned counsel for defendant No.2 would submits that as per Ex.D3 copy of registered sale deed the General Power of Attorney holder of Nandalal Ramadas and Muralidhar i.e. present defendant No.1 40 O.S.No.1555 / 2009 S. Munegowda had executed the said sale deed in favour of defendant No.2 pertaining to C-property. The defendant No.1 had executed the said document to the defendant No.2 in the capacity of General Power of Attorney holder on 06.07.1994. But as per the contents of Ex.D20 copy of public notice published in a newspaper 'Sanjevani' dated 16.01.1997, the said Nandalal Ramadas had published the said public notice in the newspaper by stating that he executed General Power of Attorney dated 20.04.1993 in favour of defendant No.1 S. Munegowda in respect of his C-property and that by issuing such public notice he revoked the said General Power of Attorney dated 20.04.1993. The learned counsel for defendant No.2 submits that as Ex.D3 sale deed was executed much earlier to the public notice dated 16.01.1997 published by the said Nandalal Ramadass in revoking the said General Power of Attorney, the same will not affect the sale deed executed by defendant No.1 in favour of defendant No.2 and by this Ex.D20 document the said Nandalal Ramadas admitted that he executed the General Power of Attorney dated 20.04.1993 to the defendant No.1 in respect of his C-property. 41 O.S.No.1555 / 2009
57. In the cross examination done by counsel for the plaintiff, DW 1 who is none other than the General Power of Attorney holder of defendant No.2 has stated that, I collected the public notice published in Sanjevani daily newspaper published on 16.01.1997 (Ex.D19). Further he stated that, he did not enquired with the editor of that paper stating that as to who gave instructions for issuance of that public notice. He denied the suggestion that the public notice marked at Ex.D19 is issued by him and defendant No.3. Further he has denied the suggestion that as Nandalal has not executed any General Power of Attorney in favour of defendant No.1, so there was no occasion for him to issue public notice as appearing in Ex.D19.
58. The above evidence in the cross examination of defendant No.1 shows that the plaintiff has not at all admitted that such public notice was issued by the said Nandalal in the newspaper and that such public notice is created by defendant No.2. In such circumstances, the defendant No.2 has to show that such public notice was actually got published by the said Nandalal Ramadas, but not by any other person. But in this case, except mere marking of Ex.D19 document, the defendant No.2 has not 42 O.S.No.1555 / 2009 examined the editor of the said Sanjevani daily newspaper in order to prove the fact that such public notice dated 16.01.1997 was actually got published by said Nandalal Ramadas, but not by any other person. Therefore, Ex.D19 document is not helpful to the case of the defendant No.2 in order to prove the said contention.
59. Ex.D3 is a copy of registered sale deed dated 06.07.1994 executed by defendant No.1 in favour of defendant No.2 pertaining to C-property. Ex.D28 is a original registered sale deed dated 06.06.1997 executed by defendant No.1 in favour of defendant No.3 pertaining to D-property. Even though in the above Ex.D3 and D28 sale deeds the vendor Sri. S. Munegowda (defendant No.1) has been shown as General Power of Attorney holder of Nandalal Ramadas and Muralidhar (owners of C & D properties), but in both the said sale deeds it has been mentioned that the defendant No.1 is a General Power of Attorney holder of Nandalal Ramadass and Muralidhar. But the date on which the said Nandalal Ramadas and Muralidhar have executed separate General Power of Attorney in favour of defendant No.1 has not been mentioned in the said document. 43 O.S.No.1555 / 2009 If really the said Nandalal Ramadas and Muralidhar have executed separate General Power of Attorney in favour of defendant No.1 as contended by defendants No.2 and 3, definitely the description of the said two General Power of Attorney would have mentioned in the said sale deeds as to on which date such General Power of Attorney was executed in favour of defendant No.1.
60. In the cross examination DW 1 has stated that Nandalal Ramadas had executed the said General Power of Attorney on account of its sale in favour of S. Munegowda. That sale in favour of S. Munegowda was on the basis of the said General Power of Attorney and agreement of sale. There is no mention in the General Power of Attorney about the sale consideration amount paid to Nandalal Ramadass, but it is mentioned in the agreement of sale. That sale agreement is with S. Munegowda. I have seen that agreement of sale with S. Munegowda. I have not collected the copy of that agreement of sale from S. Munegowda. There is no impediment for me to collect that document. 44 O.S.No.1555 / 2009
61. The above evidence of DW 1 apparently shows that apart from the alleged General Power of Attorney there was also an agreement of sale alleged to have executed by Nandalal Ramadas in favour of defendant No.1 and the sale agreement is with defendant No.1. But this fact is not at all forthcoming in the written statement filed by the defendant No.2. That apart, DW 1 has not all produced the alleged sale agreement which is in the custody of defendant No.1. Therefore, the above evidence of DW 1 creates a doubt in the mind of the court with respect to the trustworthiness of this witness and also to believe the case of defendant No.2.
62. During the course of arguments, the learned counsel for the plaintiff would submits that the alleged two General Power of Attorney as contended by the defendant No.2 and 3 was not registered and the holder i.e. defendant No.1 was not competent to execute registered sale deeds. In this regard he placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 2003 SUPREME COURT 139 - MANJUNATH ANANDAPPA URF SHIVAPPA HANSI VS. TAMMANASA AND OTHERS. Pertaining 45 O.S.No.1555 / 2009 to the facts of that case, at para No. 15 of the judgment the Hon'ble Supreme Court has stated that as under:
"15.........We may notice, at this juncture, that the plaintiff in his evidence admitted that defendant No.1 had revoked the power of attorney granted in favour of defendant No.2. In his deposition, he merely stated that such revocation took place after the agreement for sale was executed. If he was aware of the fact that the power of attorney executed in favour of defendant No.2 was revoked, the question of any demand by him upon the defendant No.2 to bring the defendant No.1 for execution of the agreement for sale would not arise at all. Furthermore, indisputably the said power of attorney was not a registered one. Defendant No.2, therefore, could not execute a registered deed of sale in his favour"............
In the above cited case, defendant No.1 is admittedly, the owner of the property in suit. Defendant No.2 is the constituted attorney of defendant No.1, who, on or about 01.10.1978 is said to have entered into an agreement of sale with the plaintiff in respect of the suit property. But in the case on hand, the deceased Nandalal Ramadass and the plaintiff have not admitted the execution of power of attorney by them. Therefore, the facts of the above cited case are distinguishable from the facts of the present case.46 O.S.No.1555 / 2009
63. Further, the learned counsel for the plaintiff has cited a decision of the Hon'ble Supreme Court reported in 2011 AIR SCW - 6385 - SURAJ LAMP AND INDUSTRIES PVT. LTD. VS. STATE OF HARYANA AND ANOTHER. I have perused the ratio laid down in the above decision. The facts of the above cited case are differ from the facts and circumstances of the case on hand. Hence, the ratio laid down in the above decision is not aptly applicable in the present case.
64. Therefore, on considering the above facts and circumstances of the case, and on assessing the evidence of DW 1 and 2 and the above documentary evidence of defendants side, it is stated that the defendant No.2 and 3 have failed to prove their initial onus of proof regarding the execution of the alleged two General Power of Attorney dated 20.04.1993 alleged to have executed by Nandalal Ramadas and Muralidhar in favour of defendant No.1 pertaining to C & D properties. In such circumstances the onus of proof never shift on the plaintiff as the defendant No.2 and 3 have failed to prove the initial onus of proof which is cast on them in proving their contention. Therefore, in view of all these reasons it is stated that the 47 O.S.No.1555 / 2009 plaintiff has proved the fact that the alleged General Power of Attorney dated 20.04.1993 alleged to have executed by Nandalal Ramadas in favour of defendant No.2 and another alleged General Power of Attorney dated 20.04.1993 alleged to have been executed by the plaintiff in favour of defendant No.1 are forged and fabricated documentS.
65. As the plaintiff has proved the fact that the alleged two General Power of Attorney dated 20.04.1993 are forged and fabricated documents and as the defendant No.2 and 3 have failed to prove the execution of such two General Power of Attorney by the said Nandalal Ramadas by the plaintiff in favour of defendant No.1 as contended by them, in such circumstances, the sale deed i.e. Ex.D3 executed by defendant No.1 in favour of defendant No.2 on 06.07.1994 pertaining to C-property and the sale deed dated 06.06.1997 (Ex.D28) executed by the defendant No.1 in favour of defendant No.3 pertaining to D-property are having no value in the eye of law. In such circumstances, the said Ex.D3 and D28 sale deeds are not binding on the LRs of Nandalal Ramadas and the present plaintiff as the said two documents are invalid documents.
48 O.S.No.1555 / 2009
66. In the plaint and also in the oral evidence it is contended by the plaintiff that he has been in possession and enjoyment of the suit schedule property from the date of its purchase till the filing of the suit. But the defendant No.2 and 3 have denied the said plaint allegations and according to them the defendant No.2 is in possession and enjoyment of C-property and defendant No.3 is in possession and enjoyment of the D-property as on the date of suit.
67. If we peruse the documents got marked by the plaintiff i.e. Ex.P1 to P19, it is seen that the plaintiff has not at all placed any documents like Katha extract, katha certificate issued by the BBMP in favour of plaintiff pertaining to the suit property in order to show that the Katha of the suit schedule property has been changed into the name of the plaintiff and the plaintiff has also not produced the documents like betterment charges certificate and tax paid receipts in order to show that he had paid tax to the concerned authority pertaining to the suit property. Except the oral testimony of PW 1 who is the General Power of Attorney holder of the plaintiff, there is no convincing 49 O.S.No.1555 / 2009 evidence is found on record on behalf of the plaintiff side in order to show that the plaintiff has been in possession and enjoyment of the suit property as on the date of suit.
68. In the written statement and also in the evidence the defendant No.2 has contended that he has been possession and enjoyment of C-property which is described in para 5 of the written statement, but not the plaintiff. So also, the defendant No.3 has contended both in the written statement and also in the oral evidence that she has been possession and enjoyment of the D-property as on the date of suit.
69. The defendant No.2 has produced the copy of Ex.D6 betterment charges receipt issued by BBMP, Bangalore in favour of defendant No.2. As per this document, the defendant No.2 has paid totally a sum of Rs.77,400/- towards betterment charges of C-property which he alleged to have purchased under Ex.D3 sale deed dated 06.07.1994. If we peruse the Katha number, house list number which are mentioned in schedule ofEx.D3 document with that of Ex.D6 document, it is seen that the Katha numbers and extent of the property which are mentioned in 50 O.S.No.1555 / 2009 both the documents are one and the same. This shows that in the year 2000 itself, the defendant No.2 has paid betterment charges of Rs. 77,400/- to the BBMP authority pertaining to C- property. On the contrary, the plaintiff has not produced such document before the court to show that he had paid betterment charges to the BBMP authority pertaining to the suit property. Therefore, the oral evidence of DW 1 coupled with the contents of Ex.D6 document collectively shows that the defendant No.2 has been in possession and enjoyment of C-property as on the date of suit.
70. In the written statement and also in the oral evidence it is stated by the 3rd defendant that she has been in possession and enjoyment of D-property as on the date of suit, but not the plaintiff. Ex.D33 is a katha certificate, Ex.D34 is a demand register extract, Ex.D35 is a katha certificate, Ex.D36 is a Katha certificate pertaining to D-property. The above said documents shows that in respect of the property bearing No. 315 (D- property) the concerned BBMP authority have effected the katha into the name of defendant No.3. Ex.D37 is a receipt issued by BBMP authority in favour of defendant No.3 for having received 51 O.S.No.1555 / 2009 Rs.40,000/- towards betterment charges of D-property. This receipt was issued on 07.08.2006. Ex.D38 is a notice issued by the BBMP Authority to the 3rd defendant calling upon her to pay the required amount as shown in the said notice towards assessment of tax pertaining to the D-property. Ex.D39 is a receipt for having paid an amount of Rs. 11,149/- by the 3rd defendant towards property No.315 i.e. D-property during the year 2004. The 3rd defendant has also produced number of tax paid receipts pertaining to the D-property at Ex.D39 to D42. Ex.D43 to D49 are the number of electricity bills with receipts produced by the defendant No.3 pertaining to the property bearing No. 315 (D-property).Ex.D50 are the telephone bills which are issued in the name of the defendant No.3 and the house list mentioned as No.423/315. Ex.D53 is a savings account passbook of Vijaya Bank, Sanjaynagar Branch which is stood in the name of 3rd defendant. The house number in the said document is mentioned as 423, situated 1st Cross, Postal Colony, Sanjaynagar, Bangalore. Ex.D57 is another electricity bill with receipt, Ex.D58 to 69 are the photographs submitted by the 3rd defendant along with Ex.D62 C.D.. In Ex.D58 photo the name board of the 3rd defendant has been fixed on the wall 52 O.S.No.1555 / 2009 of the small building and the number of house is mentioned as No.422 and 423. All the above said documents which are produced by the 3rd defendant and also the oral evidence of DW2 (General Power of Attorney holder of 3rd defendant) collectively shows that it is the 3rd defendant who has been in possession and enjoyment of D-property, but not the plaint.
71. Regarding production of number of tax paid receipts produced by the 3rd defendant at Ex.D39 to D42 (17 in Nos.) pertaining to D-property, the learned counsel for the defendant No.3 has cited the decision of Hon'ble Supreme Court, reported in AIR 2015 SC-1236 - ZARIF AHAMAD (D) THR LRs AND ANOTHER VS. MOHAMAD FAROOQ. In the above decision pertaining to the facts of that case at para No.16 of the judgment the Hon'ble Supreme Court has stated as under.
"16. However, in our view, Advocate Commissioner's report, in the present case, is against the weight of the oral and documentary evidence on record which sufficiently proves that plaintiff was in possession over plot No.358, and for several years he was paying the house tax, as was found by the Trial court on the basis of house tax receipts and extracts of house tax Assessment Register."..........
In the present case also the 3rd defendant has produced number of tax paid receipts at Ex.D39 to 42 to show that she 53 O.S.No.1555 / 2009 has paid tax to the concerned authority pertaining to D-
property. This shows that she has been in possession of suit D-
property. Hence, the ratio laid down in the above decision is also applicable to the present case.
72. Therefore, on considering the above facts and circumstances of the case and for the reasons stated supra, it is stated that the plaintiff has failed to prove the fact that he has been in possession and enjoyment suit schedule property as on the date of suit. On the contrary, the material on record shows that the defendant No.2 has been in possession and enjoyment of C-property and the defendant No.3 has been in possession and enjoyment of D-property as on the date of suit. Hence, I answer the above issue accordingly.
73. ISSUE No.5: In the written statement the defendant No.2 has contended that the plaintiff is not in possession of the suit schedule property and he has lost the possession in the year 1994 when the sale deed dated 06.07.1994 came to be executed by the 1st defendant in favour of 2nd defendant 54 O.S.No.1555 / 2009 conveying the site No.C and as such the plaintiff cannot maintain the suit.
74. In the written statement the defendant No.3 has contended that she is the absolute owner in possession and enjoyment of the eastern portion of the property bearing No.D and that the plaintiff is not at all in possession and enjoyment of the said property. Further it is contended that this suit is only for declaration without seeking the relief of possession and the suit is not maintainable and hence the suit is liable to be dismissed.
75. At the time of arguments, the learned counsel for the defendant No.1 and 2 would submits that, in this case, the plaintiff is not at all in possession and enjoyment of the suit schedule property and that the plaintiff has filed this suit only for declaration of her title and consequential relief of injunction and as the plaintiff has not sought for relief of possession, the suit is not maintainable under law.
In this regard, the learned counsel for defendant No.2 has cited THE decision of our Hon'ble High Court reported in 2006 55 O.S.No.1555 / 2009 SCC ONLINE KAR-501 - - (SRI.ARALAPPA VS. SRI.JAGANNATH AND OTHERS).
The learned counsel for defendant No.3 has cited the decision of Hon'ble high Court of Gujarat reported in AIR 2018 GUJ-184 - PATEL CHATURBHAI GHELABHAI VS. PATEL MANUBHAI GHELABHAI - DECD.
76. In the above cited SRI.ARALAPPA VS. SRI.JAGANNATH AND OTHERS's case pertaining to the facts of that case, our Hon'ble High Court has stated in para No. 25 to 30 of the judgment as under:
"25. It is contended that when once it is demonstrated that plaintiffs were not in possession of the suit schedule property as on the date of the suit, when they did not seek for possession of the suit schedule property, in view of the second proviso to Section 34 of the Specific Relief Act, plaintiffs are not entitled to any relief of declaration. In support of this contention the defendant relied on the judgment of the Supreme Court in the case of Ram Saran and Ors. v. Smt. Ganga Devi wherein it has been held that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable.
26. A Division Bench of this Court in the case of Poojair Puttaiah and Ors. v. Kempaiah has held that in a suit for declaration of owner-ship and permanent injunction, not only the plaintiff must prove his title, 56 O.S.No.1555 / 2009 but also his possession over the property, on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, the relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership, is relief of possession of the property. The proviso to Section 34 of the Specific Relief Act, 1963, also affirms the said view. Where the plaintiff is out of possession of the land and does not seek relief for possession, a mere suit for declaration is not maintainable.
27. The Supreme Court in the case of Vinay Krishna v. Keshav Chandra held that the plaintiff is not in exclusive possession of the property and defendants and other tenants were in occupation of the property, the relief of possession ought to have been asked for as a consequential relief to the relief of declaration. The failure to do so undoubtedly bars the discretion of the Court in granting the decree of declaration. Merely because, the plaint says in the prayer column such other relief may he granted to the plaintiff, it does not mean that without a specific plea for possession and disregarding the bar under Section 42 (proviso) of the Specific Relief Act, the suit could be decreed even with reference to the portions of which the plaintiff has been in possession.
28. Section 34 of the Act reads as under:
34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, as the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek 57 O.S.No.1555 / 2009 further relief than a mere declaration of title, omits to do so.
29. In the light of the aforesaid judgment and the statutory provisions referred supra, it is clear that, the object of the section is to perpetuate and strengthen testimony regarding title and protect it from adverse attacks and to prevent future litigation by removing existing cause of controversy. The policy of the legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully. The proviso to the said Section shows the care that has been taken by the legislature to avoid multiplicity of suits and to prevent a person getting the declaration of right in one suit and immediately after the remedy already available in the other. This is clear from the proviso of the Section.
The proviso lays down that no Court shall make such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. The object of this proviso is to avoid multiplicity of the suits. Where the plaintiff is entitled to some consequential relief, directly flowing from the right or title of which lie seeks declaration in the suit, he must seek declaration in the first, instance and a consequential relief in the same suit and not by two separate suits. This provision is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to seek further relief to which he is entitled to, as a natural consequence of the declaration. That is where the judicial discretion counts. It would he a case of proper exercise of judicial discretion, to refuse to grant a declaration sought for, even if the plaintiff establishes his title but he is not in possession, on the date of the suit and do not seek the relief of possession.
30. In a suit for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the 58 O.S.No.1555 / 2009 plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not on appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title to the property. It would lead to anomalous situation and create confusion in the public, which is to be avoided."
77. In the above cited PATEL CHATURBHAI GHELABHAI VS. PATEL MANUBHAI GHELABHAI - DECD's case pertaining to the facts of that case in para No.24 of the judgment, the Hon'ble High Court of Gujarat has stated as under:
"24. The question is whether the suit for permanent injunction is maintainable in law in the absence of any specific prayer for declaration. I do not propose to take the view, as a proposition of law, that a mere suit for permanent injunction will not lie or is per se not maintainable in law in the absence of any specific prayer for declaration. However, it would depend upon the facts and circumstances of each case. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter is maintainable. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not 59 O.S.No.1555 / 2009 entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek, in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto, and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or is in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
78. Even though in the plaint and also in the oral evidence it is contended on behalf of the plaintiff that the plaintiff has been in possession and enjoyment of the suit schedule property from the date of its purchase till the filing of the suit, but the plaintiff has failed to prove the fact that he has been in possession and enjoyment of suit schedule property as on the date of the suit. While giving findings on issue No.1 to 4, this court has recorded a finding that the defendant No.2 and 3 are in possession and enjoyment of the property bearing No. C & D respectively, but not the plaintiff. Issue No.4 is held in the Negative.
60 O.S.No.1555 / 2009
79. In the prayer column the plaintiff has sought for declaration to declare that he is the absolute owner of the suit schedule property and consequential relief of permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit schedule property, apart from prayer No.(ii) & (iii).
In the plaint and also in the oral evidence the plaintiff has contended that he is in possession and enjoyment of the suit schedule property from the date of sale deed till the date of filing of the suit. As already stated, the plaintiff has failed to prove his possession and enjoyment of the suit schedule property as on the date of suit. This shows that the plaintiff was not in possession as on the date of suit. In view of the ratio laid down by our Hon'ble High Court in SRI.ARALAPPA VS. SRI.JAGANNATH AND OTHERS's case, even then, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable, as no decree for permanent injunction can be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of 61 O.S.No.1555 / 2009 possession. But in this case, the plaintiff has not at all got amended the plaint and failed to seek the relief of possession. Therefore, in view of the ratio laid down in the above cited SRI.ARALAPPA VS. SRI.JAGANNATH AND OTHERS's case and PATEL CHATURBHAI GHELABHAI VS. PATEL MANUBHAI GHELABHAI - DECD's case, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession of the suit schedule property on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so, the court shall not make any such declaration and the suit is liable to be dismissed as not maintainable. Hence, in view of all these reasons, I answer the above issue accordingly.
80. ISSUE No.6: In the written statement and also in the written argument, the defendant No.2 has contended that as per the averments made in para No.14 of the plaint, the cause of action first arose on 20.04.1993 on which date the power of attorney came to be executed, in the sense, the cause of action first arose in the year 1983 and when the General Power of Attorney holder executed sale deed on 06.07.1994 which clearly shows that the first cause of action arose in the year 1993 and 62 O.S.No.1555 / 2009 the present suit came to be filed in the year 2009 which is barred under Article 58 and 59 of the Limitation Act. The suit seeking for a declaratory relief should be filed within 3 years from the date of accrual of first cause of action. As per the averments made in para 14, the first cause of action arose on 20.04.1993 and therefore, the suit should have been filed on or before 1997. But the present suit came to be filed in 2009 which is barred by limitation and the suit is also barred under Section 34 of the Specific Relief Act. The learned counsel for the defendant No.2 has placed reliance on the following decisions.
(1) (1995) 1 SCC 198 - RAMTI DEVI (SMT.) VS. UNION OF INDIA).
(2) 2017 SCC ONLINE MP 1787 - ANITA JAIN VS. DILIP KUMAR AND ANOTHER).
81. So also, in the written statement and also in the written argument, the defendant No.3 has contended that the General Power of Attorney was executed during the year 1993 (20.04.1993) and registered sale deed was executed in the year 1994 and sale deed in favour of 3rd defendant was executed on 06.06.1997 and that the present suit came to be filed during the year 2009. These facts are well within the knowledge of the 63 O.S.No.1555 / 2009 plaintiff. Further it is contended that suit seeking the relief of declaration will have to be filed within 3 years from the date of execution of the document. However, the plaintiff has filed this suit after a lapse of 17 years. Hence, the suit filed by the plaintiff is hopelessly barred by law of limitation and not maintainable.
82. In the above cited RAMTI DEVI's case the Hon'ble Supreme Court has held that until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within 3 years from the date when the cause of action had occurred.
In the above cited AMIT JAIN's case pertaining to the facts of that case, the Hon'ble High court of Madhya Pradesh has stated that, the plaintiffs were having knowledge of the sale deed which was executed in the year 2010 and therefore, as the limitation provided is only 3 years for challenging the sale deed, the suit was certainly barred by limitation in light of Article 59 of the Limitation Act.
64 O.S.No.1555 / 2009
Bearing in mind the ratio laid down in the above decisions, now it is just and reasonable to turn to the case on hand.
83. In para 14 of the plaint, the plaintiff has stated that the cause of action for the suit arose on 20.04.1993 when the defendant No.1 has fabricated the General Power of Attorney alleged to have been executed by the plaintiff behind the back of the plaintiff and on 06.07.1994 alleged sale deed executed by the defendant No.1 in favour of defendants No.2 and 3 behind the back of the plaintiff and on 28.11.2006 when the defendant No.2 interfered with the plaintiffs possession of the schedule property and on 16.01.2009 when the Hon'ble High Court granted leave for the plaintiff to file a comprehensive suit and on 25.02.2009 when the defendants attempted to interfere with his possession of the schedule property which are within the jurisdiction of this Hon'ble Court. In the oral evidence also PW 1 has reiterated the same.
84. In the cross examination, at page No.11 PW 1 has stated that 'I do not know about the sale deeds executed by defendant No.1 S.Munegowda in favour of defendant No.2 and 3 namely, 65 O.S.No.1555 / 2009 Hanumanthegowda and Dr. T. Shoba. Further, in the cross examination, at page No.19 PW 1 has denied the suggestion that on 20.04.1993 the plaintiff Muralidhar has executed General Power of Attorney in favour of defendant No.1 S. Munegowda. Further in the cross examination at page No.27 PW 1 has stated that during the year 2006 she came to know that the defendant No.1 has forged the General Power of Attorney and sold to 2nd and 3rd defendant. The said fact was stated by defendant No.1.
Even though the learned counsel for defendant No.2 and 3 have cross examined PW 1, but it is not elicited from her mouth to the effect that much prior to the filing of earlier suit by the plaintiff in O.S.No.10606/2006 (suit for permanent injunction) she or plaintiff have the knowledge of the registerd sale deed dated 06.06.1997 executed by defendant No.1 in favour of defendant No.3 relating to the D-property and another registered sale deed dated 06.07.1994 executed by defendant No.1 in favour of defendant No.2 relating to C-property.
As already stated, in the cross examination at page No.27 PW 1 has stated that during the year 2006 she came to know that the defendant No.1 has forged the General Power of Attorney and sold to 2nd and 3rd defendant. The said fact was 66 O.S.No.1555 / 2009 stated by defendant No.1. It is seen that as per Ex.P8 copy of plaint in O.S. No.10606/2006 the present plaintiff filed the said suit against the present defendant No.2 and 3 for the relief of permanent injunction on 04.12.2006 before the Addl. City Civil Judge Court (CCH-29), Bangalore.
85. It appears that during the pendency of the suit in O.s. No.10606/2006, the plaintiff has filed I.A. No. V under Order I Rule 10(2) CPC praying to implead the present defendant No.1 S.Munegowda as defendant No.2. The plaintiff has also filed I.A. No.VI under Order VI Rule 17 CPC praying to amend the plaint as para 5(a) and 5(b) and also for amend the prayer for declaration of title and to declare that the General Power of Attorney dated 20.04.1993 and the sale deed dated 06.07.1994 as null and void. After contest the said two IAs were dismissed on 06.02.2008 by the 7th Addl. City Civil Judge Court (CCH-19) as per Ex.P18.
86. As per Ex.P7 document, the present plaintiff has preferred W.P.No.4064/2008 c/w 4065/2008 (GM-CPC) before the Hon'ble High Court challenging the order passed on I.A. No. V & VI in O.S. No. 10606/2006. In the above writ petition on 16.01.2009 67 O.S.No.1555 / 2009 the Hon'ble High Court has passed the order and that in para 3 to 5 the Hon'ble High Court has stated as under.
"3. Keeping in view that the petitioner / plaintiff has to file a comprehensive suit against appropriate persons, learned counsel for the petitioner / plaintiff files a memo seeking permission to withdraw the writ petitions as well as the suit in O.S. No.10606/2006 on the file of City Civil Court at Bangalore with liberty to file comprehensive suit.
4. The learned counsel for the respondents has no objection to the memo.
5. In view of the above and in the interest of justice and speedy disposal, the memo is accepted. Both the writ petitions are dismissed as withdrawn. Further, suit in and O.S. No.10606/2006 on the file of city Civil Judge, Bangalore City, is also dismissed as withdrawn, with liberty to file a fresh suit, in accordance with law."
87. Thereafter, in view of the order passed by the Hon'ble High Court of Karnataka in the above writ petition on 1601.2009 the plaintiff has filed this suit before this Court on 04.03.2009 against the defendants for the relief of declaration etc.
88. Para No.14 of the plaint the plaintiff has stated that the cause of action for the suit arose on 28.11.2006 when the defendant No.2 interfered with his possession of the suit property. In the oral evidence also PW 1 has reiterated the same. In the cross examination also at page No.27 PW 1 has 68 O.S.No.1555 / 2009 stated that during the year 2006 she came to know that defendant No.1 has forged the General Power of Attorney and sold to 2nd and 3rd defendant. Therefore, the averments of the plaint and the oral evidence of PW 1 shows that only in the year 2006 the plaintiff came to know the sale deeds executed in the name of defendants No.2 and 3 by the defendant No.1. During the course of arguments, the learned counsel for plaintiff would submits that before purchase of C-property by defendant No.2 from the defendant No.1 and D-property by defendant No.3 from the defendant No.1, both of them have not intimated or enquired the plaintiff as to whether he had executed such General Power of Attorney in favour of defendant No.1. It is true that there is a force in the argument as submitted by the learned counsel for plaintiff that before purchase of the property the defendant No.2 and 3 would have enquired the plaintiff as to whether he had given General Power of Attorney to the defendant No.1 to sell the said property. But in this case they have not done so. Therefore, the plaintiff has no knowledge about the said sale deeds till 2006. In the circumstances, it is stated that as the plaintiff has filed O.S.No.10606/2006 in the year 2006, it is seen that the plaintiff has filed the above said suit within 3 years 69 O.S.No.1555 / 2009 from the date of knowledge of the said two sale deeds. That apart, it is seen that the plaintiff has filed the suit in O.S. No.10606/2006 on 04.12.2006 and thereafter in view of the order dated 16.01.2009 passed by the Hon'ble High Court in the above W.P. giving liberty to the plaintiff to file a fresh suit in accordance with law, he has filed this suit on 04.03.2009 i.e. within 3 years from the date of the first suit filed by him (O.S.No.10606/2006) On considering the above facts and circumstances of the case and for the reasons as stated supra, it can be stated that the plaintiff has filed the suit within the period of limitation. Therefore, the above contention of defendant No.2 and 3 has no force at all. Hence, in view of all these reasons I answer the above issue accordingly.
89. ISSUE No.8: In the written statement the defendant No.2 has contended that until and unless proper and sufficient court fee is paid, the plaintiff cannot maintain the suit. In the written statement the defendant No.3 has contended that the suit property carved out of a converted land. The measurement of the suit schedule property totally measures 3600 sq.ft. The 70 O.S.No.1555 / 2009 present market value of the property situated at Nagashettihalli is fixed at Rs.2,000/- per sq.ft. Hence, the plaintiff has not properly valued the suit property and the court fee paid is insufficient.
90. It is seen from the records that as per the valuation slip the plaintiff has valued the suit at Rs.21,00,900/-.The suit is valued at Rs.10,50,450/- for the purpose of jurisdiction. It is mentioned in column No.4 of the valuation slip as "suit for declaration and permanent injunction. Hence, under Section 24
(d), 38 (b) and 26 (c) of Karnataka Court Fees & Suits Valuation Act, 1958 court fee of Rs.65,000/- paid."
91. It is an undisputed fact that the plaintiff is not the executant of the sale deeds dated 06.07.1994 and 06.06.1997 and accordingly to him he is the owner of the suit schedule property and he is possession. According to the plaintiff, the defendant No.1 has no right to execute the above said sale deeds in favour of defendants No.2 and 3. Therefore, the plaintiff has sought for declaration of General Power of Attorney dated 20.04.1993 is forged, fabricated and not binding on him and 71 O.S.No.1555 / 2009 sought for declaration of sale deeds dated 06.07.1994 and 06.06.1997 as null and void which does not amount to cancellation.
In the present case, the plaintiff sought for declaration of his title over the suit schedule property and for consequential injunction and the relief sought is with reference to immovable property, hence court fee shall be computed on one half of the market value of the property or on Rs.1,000/- whichever is higher. Therefore, Section 24(b) of the Karnataka Court Fees & Suits Valuation Act, 1958 is attracted for payment of court fee. In this case, the defendants have not produced any documents to show the market value of suit schedule property as on the date of suit. As per the valuation slip the plaintiff has shown the valuation of the suit property at Rs.21,00,900/- and he computed on one half of the value of the property i.e. at Rs.10,50,450/- and paid court fee of Rs.65,000/- (as he alleged under Section 24 (d), 38 (b) and 26 (c) of the Act). Therefore, the court fee paid by the plaintiff on the plaint is correct. Hence, in view of all these reasons, I answer the above issue accordingly. 72 O.S.No.1555 / 2009
92. ISSUE No.7: In the written statement the defendants have contended that there is no cause of action to file this suit. Even though the defendants have taken such contention in the written statement, they failed to convince the court as to how there is no cause for the plaintiff to file the suit. On considering the entire averments of the plaint and the oral and documentary evidence of plaintiff side, it is seen that there is a cause of action for the plaintiff to file the present suit for seeking alleged reliefs sought for in the plaint. Therefore, the above contention of the defendantD has no force at all. Hence, I answer the above issue accordingly.
93. ISSUE No.9: While giving findings on issue No.1 to 4 this court has held that the plaintiff has proved the fact that he had purchased the suit schedule property under a registered sale deed dated 12.08.1981. This court has also held that the plaintiff HAS proved the fact that THE General Power of Attorney dated 20.04.1993 alleged to have been executed by the plaintiff in favour of defendant No.1 is a forged and fabricated document. Further this court has also held that the sale deeds executed by defendant No.1 in favour of defendant No.2 and 3 on 73 O.S.No.1555 / 2009 06.07.1994 and 06.06.1997 respectively are invalid documents and not binding on the plaintiff. Further this court has held that the plaintiff has failed to prove his lawful possession and enjoyment of the suit property as on the date of suit. Further this court has held that it is the defendant No.2 and 3 who are in possession and enjoyment of C & D property respectively i.e. the suit schedule property.
94. While giving finding on issue No.5 this court has held that a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he able to seek further relief of recovery of possession also, omits to do so, the court shall not make any such declaration and the suit is liable to be dismissed as not maintainable.
Even though the plaintiff is entitled for the reliefs as prayed in the prayer column i.e. reliefs No. (i) to (iii), but the suit is liable to be dismissed as not maintainable in view of the findings on issues No.5. Hence, , I answer the above issue accordingly.
74 O.S.No.1555 / 2009
95. ISSUE No.10: In view of the my reasons as stated in issue No.1 to 9 and the conclusion arrived at, I proceed to pass the following:
ORDER Even though the plaintiff is entitled for the reliefs as sought in the prayer No. (i) to (iii) of the plaint, but in view of the finding recorded by this court in issue No.5, the suit of the plaintiff is dismissed as not maintainable under law.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by him, corrected and then pronounced by me in open court, this the 20th DAY OF DECEMBER 2018) (H. CHANNEGOWDA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Smt. Mani Bai Documents marked on behalf of the plaintiff/s:
Ex.P 1. certified copy of General Power of Attorney 75 O.S.No.1555 / 2009 executed by Muralidhar on 11.09.2006. Ex.P 2. Certified copy of acknowledgement issued by BBMP Ex.P 3. Certified copy of encumbrance certificate Ex.P 4. Certified copy of sale deed dated 12.08.1981 Ex.P 5. Certified copy of sale deed dated 06.07.1994 Ex.P 6. Certified copy of sale deed dated 06.06.1997 Ex.P 7. Certified copy of orders passed by Hon'ble High Court of Karnataka in W.P. No.4064-65/2008 Ex.P 8. Certified copy of plaint in O.S.No.10606/2006 Ex.P 9. Certified copy of written statement filed in O.S.No.10606/2006 Ex.P 10. Certified copy of interim applications field by the plaintiff U/O.39 R.1 & 2 of CPC in O.S.No.10606/2006 Ex.P 11. Certified copy of objections to I.A. filed U/O.39 R.1 & 2 of CPC in O.S.No.10606/2006 Ex.P 12. Certified copy of objections to I.A. No.2 filed in O.S.No.10606/2006 Ex.P 13. Certified copy of order sheet pertains to O.S.No.10606/2006 Ex.P 14. Certified copy of amendment application filed in O.S.No.10606/2006 Ex.P 15. Certified copy of impleading application field in O.S.No.10606/2006 Ex.P 16. Certified copy of objections to the amendment application filed in O.S.No.10606/2006 Ex.P 17. Certified copy of objections to the impleading application filed in O.S.No.10606/2006 Ex.P 18. Certified copy of order passed on I.A. No.5 Ex.P 19. Statement of the witness.76 O.S.No.1555 / 2009
List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. M. Anand DW2 Dr.Thimmegowda
Documents marked on behalf of the Defendant/s:
Ex.D 1. General Power of Attorney Ex.D 2. Certified copy of General Power of Attorney letter dated 20-4-1993 Ex.D 3. Certified copy of Register sale deed dated 6-7-1994 Ex.D 4. Certified copy of cash memo dated 13-4-2005 Ex.D 5. Electricity Receipt Ex.D 6. Certified copy of Betterment Receipt Ex.D 7. Certified copy of Endorsement dated 11-7-1997 Ex.D 8. Certified copy of Endorsement dated 29-7-1997 Ex.D 9. Certified copy of Letter dated 14-6-2000 Ex.D 10. Certified copy of Endorsement dated 11-1-2005 Ex.D 11. Certified copy of Endorsement dated 20-9-2007 Ex.D 12. Photograph Ex.D 13. Photograph Ex.D 14. Photograph Ex.D 15. Photograph Ex.D 16. Photograph Ex.D 17. Photograph Ex.D 18. Photograph Ex.D 19. Negatives Ex.D 20. Certified copy of public notice dt.16-1-97 Ex.D 21. Certified copy of plan in O.S No.1554/09 Ex.D 22. Certified copy of E.C dated 1-4-2004 to 15-7-2013 Ex.D 23. Application copy under RTI Act Ex.D 24. Postal Receipts 77 O.S.No.1555 / 2009 Ex.D 25. Postal Acknowledgement Ex.D 26. Endorsement Ex.D 27. General Power of Attorney Ex.D 28. Original Registered Sale Deed Ex.D 29. Intimation Letter Ex.D 30. Encumbrance certificate Ex.D 31. Encumbrance certificate Ex.D 32. Encumbrance certificate Ex.D 33. Katha Certificate Ex.D 34. Katha Extract Ex.D 35. Katha Certificate Ex.D 36. Katha Extract Ex.D 37. One Receipt Ex.D 38. Special Notice Ex.D 39. 14 Revenue Receipts Ex.D 40. Receipts Ex.D 41. Receipts Ex.D 42. One Receipt Ex.D 43. Electricity Sanction Letter Ex.D 44. 43 Electric Bills Ex.D 45. Application Ex.D 46. Money Receipts Ex.D 47. Uttarapatra Ex.D 48. Uttarapatra Ex.D 49. 18 Electric Bills and Money Receipts Ex.D 50. 3 Telephone Bills & receipts Ex.D 51. Rental Agreement Ex.D 52. Rental Agreement Ex.D 53. Vijaya Bank Pass Book Ex.D 54. 6 Receipts 78 O.S.No.1555 / 2009 Ex.D 55. Electric Bill Receipts & re-connection message Ex.D 56. Electric Bill Receipts & re-connection message Ex.D 57. Application copy Ex.D 58. Photo & one CD Ex.D 59. Photo & one CD Ex.D 60. Photo & one CD Ex.D 61. Photo & one CD Ex.D 62. one CD XXXVII ADDL. CITY CIVIL JUDGE, (CCH-
38), BANGALORE.79 O.S.No.1555 / 2009
Judgment pronounced in the open court (vide separate judgment). The operative portion of the order reads thus -
ORDER Even though the plaintiff is entitled for the reliefs as sought in the prayer No. (i) to (iii) of the plaint, but in view of the finding recorded by this court in issue No.5, the suit of the plaintiff is dismissed as not maintainable under law.
No order as to costs.
Draw decree accordingly.
XXXVII ACCJ, (CCH-38)