Bangalore District Court
K.Mogilappa vs Anasuya on 7 January, 2017
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
Dated this the 7th day of January 2017.
O.S.No.6231/2005
Plaintiffs:- 1. K.Mogilappa,
S/o.K.Krishnappa Naidu,
Aged about 62 years,
R/a No.97/A, 7th Main Road,
Shivanahalli,
Bangalore-10.
2. Sri.C.Krishna,
S/o.Late Chinnaswamy Naidu,
Aged about 64 years,
R/a No.97/A, 7th Main Road,
Shivanahalli,
Bangalore-10.
(By - Sri.Sachan Kumar, Adv.)
v.
Defendants:- 1. Anasuya,
Smt.D.Anasuya,
Aged about 60 years,
W/o.B.C.Kanthappa,
2. Lokesh,
Aged about 40 years,
2 O.S.No.6231/2005
S/o.B.C.Kanthappa,
3. Gopi,
Aged about 35 years,
S/o.B.C.Kanthappa,
Defendants 1 to 3 are
R/at No.25, 14th Cross,
Dasarahalli, Magadi Road,
Bangalore-560 079.
4. R.Ganga,
General Secretary,
No.19, 2nd Main Road,
Pipeline Road,
Bayyanna Layout,
Yeshwanthapur,
Bangalore-560 022.
5. Sri.Andanappa,
S/o.Late Byrappa,
Aged about 53 years,
R/at Parvathi Nagar,
Laggere Main Road,
Peenya Post,
Bangalore-560 058.
6. K.Ramamurthy,
S/o.B.Krishnappa,
Aged about 41 years,
No.7, 2nd Cross,
Ganesha Block,
Nandini Layout Post,
Bangalore-560 096.
7. Nalini Sriram (Since dead)
a) Sriram (Husband)
Aged about 50 years,
b) S.Ganesh,
Aged about 28 years,
3 O.S.No.6231/2005
c) S.Leela,
Aged about 16 years,
All R/at No.28, 2nd Cross,
Lal Bahadur Shastry Nagar,
Bellary-2.
8. Gunamba,
D/o.Srikanthappa,
Aged about 45 years,
R/at No.28, 2nd Cross,
Lal Bahadur Shastry Nagar,
Bellary-2.
9. Sudarshan,
S/o.Ramdas Set,
Aged about 62 years,
No.633, 62nd Cross,
5th Block, Rajajinagar,
Bangalore.
(D1 to 3 Sri.R.Purushothama, Adv.
D4 to 6 - Sri.V.Vijayashekara Gowda, Adv.)
D7(a) to (c), D8 & D9 - Exparte)
Date of institution of the suit : 18.08.2005
Nature of the suit : Declaration, Possession &
Permanent Injunction &
Mandatory Injunction
Date of commencement of : 23.07.2011
Recording of the evidence
Date on which the Judgment : 07.01.2017
was pronounced
4 O.S.No.6231/2005
Total Duration : Years Months Days
11 04 19
(BAILUR SHANKAR RAMA)
42nd ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
JUDGMENT
This is a suit filed by the plaintiffs against the defendants for the relief of declaration, injunction, delivery of possession, mandatory injunction and costs.
2. The brief facts as averred in the plaint are that:-
The plaintiffs are the owners in possession of plaint schedule properties formed out of Sy.No.36 situated in Laggere Village, Yeshwanthapura Hobli, Bangalore. Originally the property Sy.No.36 (old Sy.No.26) belonged to one Sri.Mugurappa and his family and they formed layout in 1 acre 18 guntas and sold Site Nos.1 and 2 in favour of Sri.S.R.Sudarshan through a registered Sale Deed dated 10.02.1981. Both the sites measuring East to West: 40 feet and North to South: 60 feet, in all 2400 square feet 5 O.S.No.6231/2005 together. The said site Nos.1 and 2 were sold to plaintiff No.1 and another through registered Sale Deed dated 22.04.1996, which is morefully described in A-schedule and possession was delivered to the purchasers. It is submitted that the said Sri.Mugurappa and his 2 sons sold Site No.3, measuring East to West: 40 feet and North to South: 30 feet through a registered Sale Deed dated 10.02.1981 to one Smt.Nalini Sriram, which is mentioned in B-schedule, in turn, it was sold to plaintiff No.2 - Sri.C.Krishna.
Sri.Mugurappa and his 2 sons - Sri.Puttaiah and Sri.Dalaiah sold Site No.4, measuring East to West: 40 feet and North to South: 30 feet to Mrs.M.S.Gunamba through a registered Sale Deed dated 19.02.1981, in turn, the said site was purchased by plaintiff No.2, which is morefully described in C-schedule on 02.05.1996. The plaintiffs being owners have put up small shed in plaint A, B and C schedule properties. The plaintiffs have acquired A, B and C schedule properties. Sri.Mugurappa and his brothers acquired land Sy.No.36 of Laggere Village by purchasing 3 acres 8 guntas of land as available and phut kharab of 1 acre 18 guntas. Sri.Mugurappa and his 2 brothers sold in the year 1964 only 6 O.S.No.6231/2005 the portion of 3 acres to joint purchasers namely Smt.Huchamma, Smt.Marakka, Sri.Lingaiah and Sri.Bairappa. Thus, Sy.No.36 of Laggere Village was divided into 2 parts, 3 acres to the eastern side and remaining land to the western side. Thus, the 4 purchasers were in possession of 30 guntas each. The plaintiffs submit that one of the son of Sri.Mugurappa by name Sri.Thibbaiah filed suit for partition in O.S.No.2048/1981 against his father and other brothers. In the said suit, defendant No.1
- Smt.Anasuya in the present suit voluntarily got impleaded as defendant No.21. In respect of 7 guntas of land and 30 guntas of land being within 3 acres portion in Sy.No.36 of Laggere Village on the basis of Sale Deeds conceding that Smt.Anasuya had no land claimable by her to the west of 30 guntas of land and to the west of 3 acres portion. She has raised counter claim in the said suit making allegations that the defendants 4 to 20 by encroaching had been put up constructions and sought for mandatory injunction. In the said suit though counter claim was allowed, but the court has rejected her prayer to grant mandatory injunction. Against the said judgment, she did not prefer any appeal. 7 O.S.No.6231/2005 Thus, the counter claim raised by her for mandatory injunction and declaration of title to the land of 30 guntas was disallowed. As such, the said Smt.Anasuya's property fell within 3 acres portion of land as per title deed dated 12.12.1968. She doesn't have any right, title to any land situated to the west of her 30 guntas of land, which is to the east of 1 acre 18 guntas of western portion. The said decree has become final and absolute. In the said judgment, it is held that the defendants 1 to 3 in that suit are bonafide purchasers. Therefore, defendant No.1 - Smt.Anasuya is a total stranger to the suit schedule properties described in the present suit. Thereafter, with an intention to grab land Smt.Anasuya has filed suit for injunction in O.S.No.1988/1999 on the file of City Civil Court, in respect of 30 guntas of land, which was subject matter of counter claim of O.S.No.2048/1981. Later on, she got dismissed the suit as withdrawn. The defendants 1 to 3 without having any manner of right in the suit schedule properties, with the support of henchmen and rowdy elements started interfering with the peaceful possession and enjoyment of the suit schedule properties by the 8 O.S.No.6231/2005 plaintiffs. Even they threatened to dispossess the plaintiffs. The defendant No.1 is bound by the decree and judgment passed in O.S.No.2048/1981, she is prohibited to say that to the west of 30 guntas there is only 8 guntas of land. The kharab portion is 1 acre 18 guntas had come into possession of Sri.Mugurappa, which lies to the west of 3 acres of land. Smt.Anasuya is in possession of counter claim property made dishonest claim and sought possession preferred RFA.No.379/1999. In the said case the predecessors of the plaintiffs were not made as parties. The defendants are guilty of withholding the true facts. The plaintiffs are put up with the possession of suit schedule properties by their vendors. In O.S.No.2048/1981 the vendors of the plaintiffs were held as bonafide purchasers, as such they are true owners and lawfully inducted in possession. Therefore, the defendants are not owners of any part of land to the west of 30 guntas land described within the schedule of the decree in RFA.No.379/1999 and O.S.No.2048/1981. The 30 guntas of land of defendant No.1 - Smt.Anasuya being within 3 acres portion on the eastern side and is only to an extent of 30 guntas with 9 O.S.No.6231/2005 reference to actual partition among the 4 joint purchasers namely Smt.Huchamma, Smt.Marakka, Sri.Lingaiah and Sri.Byrappa. Smt.Anasuya had purchased 30 guntas of land from Sri.Byrappa and to the west of Sri.Byrappa's portion remaining portion of Sy.No.36 without any mention of measurement or dimension, therefore the dimensions of the remaining land has been 1 acre 18 guntas and little more. The plaintiffs submit that kharab land in Sy.No.36 had been in possession and enjoyment of the Sri.Mugurappa and his sons, formed layout, constructions have come up in site Nos.13, 17 and 18. Ingeniously the defendants did not array defendant No.1 in any of the proceedings in O.S.No.2048/1981 or in RFA.No.379/1999. The alienation of sites to different persons shows that remaining portion to the west of 30 guntas of land of first defendant is really to the extent of 1 acre 18 guntas. The defendants have suppressed the fact that defendant No.1 has formed layout of 22 sites in her 30 guntas of land purchased from Sri.Byrappa and sold all the sites to the different persons except a portion 15' x 30', which is retained by her. Such alienations were made before 1977 itself and purchasers 10 O.S.No.6231/2005 have put up constructions and residing therein. On 12.08.2005, the defendants 1 to 3 have forcibly attempted to enter into suit A, B and C schedule properties and it was resisted by the plaintiffs. The decree in the counter claim in O.S.No.2048/1981 is binding. Therefore, the cross suit filed by defendant No.4 in this suit is liable to be dismissed as it is hit by res-judicata. The plaintiffs submit that defendant No.1 - Smt.Anasuya and defendants 4 to 6 falsely created Sale Deeds in respect of A, B and C schedule properties of the counter claim, colluding each other. Therefore, those documents are false and fabricated. The defendant No.4 in collusion with defendant No.1 had created the fabricated Sale Deeds. The property is not identifiable, since the boundaries on the eastern side is a false statement, had been purchased as 30 guntas of land by Smt.Anasuya from Byrappa on 12.12.1968. The admissions of defendant No.1 in the earlier suit in respect of the properties is binding on them. The counter claim raised by defendants 4 to 6 is liable to be dismissed. The plaintiffs have filed detailed rejoinder denying the allegations made by the defendants 4 to 6 in their counter claim and Sale 11 O.S.No.6231/2005 Deeds created by them in respect of A, B and C schedule properties are not binding on the plaintiffs. Hence, the suit.
3. After the service of suit summons, defendants 1 to 3 appeared before court through their advocate - Sri.R.Purushothama and defendants 4 to 6 have appeared through their advocate - Sri.Vijayashekara Gowda, Advocate. The Defendants 8 and 9 and legal heirs of defendant No.7 i.e., D7(a) and (b) have remained exparte.
4. The defendants 1 to 3 filed the written statement, contended that the dispute sought to be raised in their suit has already been concluded in O.S.No.2048/1981, in which Sri.Sudarshan, Smt.Nalini Sriram and Smt.Gunamba were party - defendants and they are bound by the decree dated 02.01.1999, as such the present suit is hit by principles of res-judicata. The defendant No.1 is the absolute owner of land measuring 30 guntas in Sy.No.36 (old No.26) of Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk. One Sri.Mugurappa has purchased only 3 acres 8 guntas of land in the said survey number from its previous owner - Sri.Huliyappa under a Registered Sale Deed 12 O.S.No.6231/2005 15.05.1957, thereafter Sri.Mugurappa sold 3 acres of land on 18.04.1964 in favour of Sri.Lingaiah, Smt.Rajamma, Smt.Marakka and Sri.Byrappa. Thus Sri.Mugurappa has retained only 8 guntas of land towards western side of 3 acres of land sold by him. In that 8 guntas, several huts are put up by third parties. The defendant No.1 purchased 30 guntas in Sy.No.26 from previous owner - Sri.Byrappa under registered Sale Deed dated 12.12.1968. The said land is situated on the eastern side of 8 guntas of land retained by Sri.Mugurappa. One Sri.Thibbaiah, son of Sri.Mugurappa has filed partition suit in O.S.No.2048/1981 before this court against his father and others, by impleading alleged purchasers of the sites. In that case, in respect of 30 guntas of land defendant No.1 - Smt.Anasuya had raised counter claim and after trial her counter claim was decreed, holding that Smt.Anasuya is the full and absolute owner and in possession of 30 guntas of land. The defendants in that case have preferred RFA.No.202/1999 it came to be dismissed on 17.07.2002. The defendant No.1
- Smt.Anasuya preferred RFA.No.379/1999, to the extent the court has declined to give relief of mandatory injunction, 13 O.S.No.6231/2005 same came to be allowed on 05.02.2002, holding that the illegal structure constructed by Sri.Varadaraju and others shall be demolished within 3 months from the date of judgment. The defendant No.1 filed Execution Petition No.2593/2002 before City Civil Court, Bangalore, same was executed on 07.09.2004 by appointing a Court Commissioner and illegal structures were demolished with the assistance of police and BMTF. The unsuccessful defendants have got filed the present suit by making false and baseless allegations. Therefore, the joint suit filed by the plaintiffs for bare injunction in respect of 2 alleged separate properties by different alleged Agreement Holders and GPA is not maintainable in law. The plaintiffs are basing their suit on the alleged GPA said to have been executed by defendants 9, 10 and 18 in O.S.No.2048/1981 and those documents are illegal and void. The plaintiffs have misrepresented the whole facts on the strength of concocted and created documents. The alleged Sale Deeds produced by the plaintiffs executed by Sri.Mugurappa and others in favour of Sri.Sudarshan and others, have no sanctity under law as this aspect was already dealt with in 14 O.S.No.6231/2005 judgment in O.S.No.2048/1981 and RFA.No.202/1999. The plaintiffs are claiming their rights and possession on the strength of alleged GPA which is not permissible under law. It is already decided that Sri.Mugurappa had purchased only 3 acres 8 guntas of land in Sy.No.26 (new Sy.No.36) and in turn, he had sold 3 acres retaining only 8 guntas of land on the western side of the land sold by him. The remaining extent of land in the above said survey number had not been purchased by Sri.Mugurappa from its owner - Sri.Dodda Puttaiah @ Doddaputtegowda. The said Sri.Doddaputtegowda has sold the remaining extent of land in the said survey number in favour of Sri.Siddaiah and others. In the registered Partition Deed dated 15.10.1934 in the family of Sri.Siddaiah, they got divided all the properties and the purchasers are in possession and enjoyment of remaining land in Sy.No.36. Therefore, the allegations of the plaintiff to the effect that cultivable land measuring 3 acres and rest of the land is kharab is totally false. In fact, RTC establishes that the extent of kharab land in Sy.No.36 is only 10 gutnas. The said kharab land was not in possession or on the side of the land of 15 O.S.No.6231/2005 Sri.Mugurappa and it was not part of the Sale Deed in favour of Sri.Mugurappa. Therefore, say that Sri.Mugurappa and others have retained 1 acre 18 guntas to the west of 3 acres sold to Smt.Huchamma and others is utter falsehood. The defendant submits that defendant No.1 formed the layout and then sold the sites to Sri.Ramamurthy and others and the purchasers have constructed the building and now they are in possession and enjoyment of the property. The allegation that Sri.Mugurappa had formed 20 sites in 18 guntas of land is impossible and same doesn't arise and no such sites are in existence. The defendant No.1 has also filed one more suit O.S.No.3652/1998 before this court against the plaintiffs' vendors and others, same was decreed in her favour. Therefore, the present suit is misconceived. The plaintiffs doesn't have any manner of right, title and interest, much less possession over the suit schedule properties. Since the plaintiffs are not in possession, as such not entitled to get the relief of injunction.
5. After amendment, the defendants 2 and 3 have filed additional written statement, contending that court fee 16 O.S.No.6231/2005 paid is insufficient. Just to defeat the decree in O.S.No.2048/1981, the present suit is filed. The properties described in the plaint do not exist in its form, as the predecessors of the plaintiffs had not acquired any title in respect of suit properties. The persons who are said to have executed GPA and Agreement had no title or possession. GPA Holder will not stand on better pedestal. As such, suit itself is not maintainable and sought for the dismissal of the same.
6. The defendants 4 to 6 have filed written statement with counter claim. The plaintiffs based on false and frivolous documents by inventing grounds without seeking the relief of declaration against the true owners. As such, suit against defendants 4 to 6 is not maintainable. In addition to the facts averred by the defendants 1 to 3 in their written statement, the defendants 4 to 6 contend that the plaintiffs are not at all in possession of the suit schedule properties and the alleged Agreement and GPA etc., what is relied by the plaintiffs is in respect of non-existing sites. Therefore, the plaintiffs without representing their alleged vendors, who have granted power of attorney in their name, 17 O.S.No.6231/2005 the agents cannot file the above suit in their sole name as it is opposed under Order 3(2) of CPC. The plaintiffs are guilty of suppressio vary and suggestio falsi. The plaintiffs are not at all in possession of any portion of suit schedule properties. The defendants 4 to 6 are in possession and enjoyment of the sites purchased by them in Site No.11 and 12 formed in Sy.No.36 (old Sy.No.26), BBMP Ward No.13, situated at 17th Main, 9th Cross, Laggere Village, Bangalore, measuring East to West: 40 feet and North to South: 60 feet and in the counter claim, they mentioned the above said property as A-schedule property. The defendant No.5 is the absolute owner and in lawful possession and enjoyment over Site No.13 and 14 formed in New Sy.No.36, East to West: 40 feet and North to South: 60 feet described in counter claim as B-schedule. The defendant No.6 is the owner in lawful possession of Site measuring East to West:
40 feet and North to South: 60 feet, site No.9 and 10, formed in new Sy.No.36, referred as C-schedule in the counter claim. Therefore, the plaintiffs cannot misinterpret that Sri.Mugurappa owned 4 acres 18 guntas in Sy.No.36 (old No.26) of Laggere Village. The defendant No.1 has 18 O.S.No.6231/2005 formed layout and sold the sites to these defendants as mentioned in counter claim schedule A, B and C under valid registered Sale Deeds. The defendant No.4 purchased A-
schedule property through a registered Sale Deed dated 28.01.2005 and defendant No.5 purchased counter claim B- schedule property through a registered Sale Deed dated 03.02.2005 and defendant No.6 purchased counter claim C- schedule property through a registered Sale Deed dated 03.02.2005. The specific boundaries were shown in their Sale Deeds, which were formed in the counter claim schedule properties in O.S.No.2048/1981 and the defendants 4 to 6 have put up building and in lawful possession and enjoyment of the same. Therefore, counter claim A, B and C properties are existing within 30 guntas of land in Sy.No.36 (old Sy.No.26) of Laggere Village under the ownership of Smt.Anasuya. Therefore, the plaintiffs have not approached the court with clean hands. The alleged boundaries, measurements and description given by the plaintiffs in respect of the suit schedule properties are incorrect and denied by the defendants. There is no cause of action to the plaintiffs for the relief claimed against the 19 O.S.No.6231/2005 defendants and prayed that suit of the plaintiffs be dismissed by allowing the counter claim.
7. In the additional written statement filed by them, they contended that suit is opposed under the provisions of Indian Registration Act and also under Section 53(A) of Transfer of Property Act. The plaintiffs now taking shelter under unregistered Sale Agreements with possession for the relief of declaration, to declare that the plaintiffs are the owners in respect of alleged suit properties and in the previous suit, court has given clear findings on the above said facts and issues involved. Thus, the documents attract stamp duty and penalty under Sections 17 and 18 r/w Section 33 and 34 of the Indian Registration Act. None of the plaintiffs are absolute owners in possession, having any right in their favour, therefore not entitled for the relief of declaration. The suit schedule properties are non-est even as on the date of filing the suit and prior to the filing of the suit. When the plaintiffs are seeking the relief of possession, they have to value the suit under Section 29 of the Karnataka Court Fees and Suits Valuation Act and to pay court fee on the market value of the suit properties or else 20 O.S.No.6231/2005 the counter claim schedule properties. If nominally valued it will come around Rs.86,40,000/- as such the plaintiffs shall pay court fee amounting to the tune of Rs.2,47,125/-. The relief claimed to declare that the Sale Deeds dated 28.01.2005, 03.02.2005 and 07.02.2005 standing in the names of the defendants 4 to 6 are null and void, meaning that the plaintiffs are seeking cancellation of such registered instruments, then plaintiffs shall value the suit under Section 38 of the Karnataka Court Fees and Suits Valuation Act and shall pay court fee on the market value i.e., Rs.2,47,125/-. The plaintiffs sought the relief of mandatory injunction, seeking possession from the defendants 4 to 6 and paid court fee under Section 26(c) of the Karnataka Court Fees and Suits Valuation Act. In fact, it should have been under Section 29 of the Act. Therefore, the court fee paid is insufficient and suit is liable to be dismissed under Order 7 Rule 11 (b) to (d) CPC. The defendants 4 to 6 are in lawful possession and enjoyment of the counter claim A, B and C properties. As such, the plaintiffs do not have any locus standi to file and maintain the above suit and they are 21 O.S.No.6231/2005 not entitled to seek any of the reliefs claimed and prayed that suit be dismissed with costs.
8. The plaintiffs filed rejoinder to the counter claim denying all the allegations made by defendants 4 to 6 and supporting allegations made by defendants 1 to 3. The plaintiffs submit that the kharab portion 1 acre 18 guntas had also come into possession of the Sri.Mugurappa, which lies to the west of 3 acres portion and he made the layout and prepared sites. Therefore, to the west of Smt.Anasuya's, the land to the greater extent and it also goes to 1 acre 18 guntas and little more. Hence, the allegation made by the defendants is false. In O.S.No.2048/1981 the predecessor of the plaintiffs namely Sri.Sudarshan, Smt..Nalini Sriram and Smt.Gunamba have been held as bonafide purchasers of their respective sites. Therefore, they were the true owners and present plaintiffs were lawfully inducted in possession of the sites. The defendant No.1 distinctly is not the owner of any part of the land to the west of 30 guntas of land described within the schedule of decree in RFA.No.379/1999 and decree in O.S.No.2048/1981. Therefore, the defendants are not the 22 O.S.No.6231/2005 lawful owners and possessors of counter claim A, B and C properties. The defendant No.1 ought to have produce the Partition Deed in the family of her vendors to show her 30 guntas of land purchased from Sri.Byrappa and to the west of Sri.Byrappa's portion, remaining portion of Sy.No.36 without any mention of measurements and dimensions. Therefore, Smt.Anasuya has no manner of right to encroach into neighbours land. Sri.Mugurappa purchased 3 acres 8 guntas as cultivable lands and the extent of land was 4 acres 18 guntas and 1 acre 18 guntas was kharab. It is settled position of law that the kharab portion in the land is also cultivable land. Therefore, the defendants without having any manner of right on the strength of created documents are laying false claim over the properties belonged to the plaintiffs and prayed that counter claim be dismissed by decreeing the suit as prayed for.
9. Basing on the above said pleadings the following issues are framed:-
ISSUES
1. Whether the plaintiffs prove that they are the absolute owners of suit schedule A, B, C properties?23 O.S.No.6231/2005
2. Whether the plaintiffs prove their lawful possession over the suit schedule properties?
3. Whether the plaintiffs prove that by making encroachment of suit schedule properties, construction has been made illegally?
4. Whether the plaintiffs prove that the Sale Deeds dated 28.01.2005, 03.02.2005 and 07.02.2005 of defendants 4 to 6 are null and void?
5. Whether the plaintiffs are entitled for the relief of declaration?
6. Whether the plaintiffs are entitled for the relief of injunction and possession of the encroached area?
7. Whether the defendants 4 to 6 prove that they are in lawful possession over the counter claim schedule property?
8. Whether the defendants are entitled for the relief of permanent injunction in respect of counter claim schedule property?
9. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiffs prove that the defendants have played fraud upon them and upon the court to obtain decree in O.S.No.2048/1981?
24 O.S.No.6231/2005AS PER ORDER ON I.A.No.46 DATED 14.06.2016 FOLLOWING ADDITIONAL ISSUES FRAMED:
2. Whether suit is barred by the principles of res-judicata by virtue of the decision in O.S.No.2048/81 as pleaded by the defendants between the plaintiffs and the defendants?
3. Whether the property claimed in O.S.No.2048/81 comprised the suit schedule property as claimed by the defendants?
10. The plaintiff No.1 got himself examined as PW-1 and one witness as PW-2 and got marked Ex.P1 to Ex.P45 and closed their side. The defendant No.2 got himself examined as DW-1 and one witness as DW-2 and got marked Ex.D1 to Ex.D43 and closed their side.
11. After the closure of the evidence, heard the arguments.
12. My answers to the above issues are as follows:-
Issue No.1:- In the negative.
Issue No.2:- In the negative.
Issue No.3:- In the negative.
Issue No.4:- In the negative.
Issue No.5:- In the negative.
25 O.S.No.6231/2005
Issue No.6:- In the negative.
Issue No.7:- In the affirmative.
Issue No.8:- In the affirmative.
Addl.Issue No.1:- In the negative.
Addl.Issue No.2:- In the affirmative.
Addl.Issue No.3:- In the affirmative.
Issue No.9:- As per final order.
for the following:-
REASONS
13. Issue Nos.1 to 4, 7 & Addl.Issue Nos.1 to 3:-
For the sake of convenience all these issues are taken up together for discussion to avoid repetition of facts and evidence.
14. The pleaded case of the plaintiffs is that they are the owners of suit schedule - A, B and C properties and the defendants have illegally encroached upon the suit schedule properties and put up construction. The Sale Deeds executed by defendant No.1 dated 28.01.2005, 03.02.2005 and 07.02.2005 in favour of the defendants 4 to 6 are null and void and not binding on the rights of the plaintiffs. It is further case that in earlier litigation O.S.No.2048/1981 the 26 O.S.No.6231/2005 defendants have played fraud upon the court and obtained decree by misrepresenting the facts. Whereas, the positive case made up by the defendants 4 to 6 that they are in lawful possession over the counter claim schedule properties and in respect of the said properties including the suit schedule properties which were the subject matter in O.S.No.2048/1981 and the rights of the parties were decided and it has reached its finality, as such the present suit filed by the plaintiffs in respect of very same properties is barred by principles of res-judicata.
15. In this suit, the plaintiffs have claimed the declaration that they be declared as owners of suit schedule-A, B and C properties and also sought for delivery of possession by the defendants and also mandatory injunction to demolish the constructions made in suit schedule-A, B and C properties, whereas, the defendants 4 to 6 have sought the relief of permanent injunction against the plaintiffs in respect of counter claim schedule properties.
16. Both the sides have led evidence and produced the documents. Therefore, the defence set up by the 27 O.S.No.6231/2005 defendants 2 and 3 that the plaintiffs are claiming the relief of declaration in respect of non-existent properties on the basis of the Sale Deeds dated 10.02.1981 and 19.02.1981 executed by Sri.Mugurappa and his sons in respect of Sri.S.R.Sudarshan, Smt.Nalini Sriram and Smt.Gunamba and they have executed GPAs, Agreements and Affidavits in favour of the plaintiffs on 22.04.1996, 22.07.1996 and 02.05.1996. On 10.02.1981 and 19.02.1981 the recitals mentioned in the Sale Deeds that Sri.Mugurappa and his sons partitioned the property measuring 1 acre 20 guntas under Partition Deed dated 22.08.1964. Therefore, the case of the defendants is that the vendors of the present plaintiffs i.e., Sri.S.R.Sudarshan, Smt.Nalini Sriram and Smt.Gunamba are the defendants 9, 10 and 18 in O.S.No.2048/1981 and the respondents 11, 18 and 10 in RFA.No.202/1999.
17. It has come in the evidence of DW-1 -
Sri.B.K.Lokesh, who is the son of deceased defendant No.1
- Smt.D.Anasuya that his mother Smt.D.Anasuya purchased 30 guntas of land in Sy.No.36 from one Sri.Byrappa on 15.05.1957. Sri.Lingaiah, Sri.Byrappa, 28 O.S.No.6231/2005 Smt.Marakka and Smt.Huchamma had got shares in the said property and they had entered into partition on 19.08.1968. Of course, Smt.D.Anasuya was not a party to the Sale Deed dated 15.05.1957, but it is an admitted fact that Smt.D.Anasuya was defendant No.21 in O.S.No.2048/1981, wherein she had set up counter claim. It is also admitted fact that Smt.D.Anasuya had purchased 7 guntas of land from Smt.Huchamma. Therefore, according to his evidence, land bearing Sy.No.26 (new Sy.No.36) of Laggere Village in all measuring 4 acres 28 guntas had been purchased by one Sri.Doddaputtegowda in the Government auction held in the year 1929. He sold 30 guntas of that land to Sri.Gangappa s/o.Siddaiah under a Registered Sale Deed dated 04.11.1932. Thereafter, said Sri.Doddaputtegowda sold 3 acre 8 guntas to one Sri.Yellappa under a Sale Deed dated 11.02.1933 and the very same 3 acres 8 guntas of land have changed 5 hands i.e., Sri.Yellappa sold the entire land to Sri.Krishnappa on 09.09.1942. The said Krishnappa sold the same to Sri.Subbaiah on 14.12.1942. Sri.Subbaiah sold the same to Sri.Muniswamappa under a Sale Deed dated 24.06.1946. 29 O.S.No.6231/2005 Sri.Muniswamappa sold the said land to Sri.Hanumanthappa under Sale Deed dated 25.09.1948. Again the said Sri.Hanumanthappa sold the said land to one Sri.Munikalasappa under Sale Deed dated 19.09.1949. In turn, he has sold the same Sri.Huliyappa @ Yelavaiah under Sale Deed dated 15.01.1957 and 3 acres 8 guntas of land was purchased by Sri.Mugurappa from Sri.Yelavaiah under Sale Deed dated 15.05.1957. Thereafter, Sri.Mugurappa had sold 3 acres of land to Sri.Lingaiah, Sri.Byrappa, Smt.Marakka and Smt.Huchamma under Registered Sale Deed dated 18.04.1964 and Sri.Mugurappa had retained 8 guntas of land to the west of land sold by him. These are the admitted facts of change of hands.
18. One thing is clear that out of 3 acres 8 guntas of land purchased by Sri.Mugurappa, he had sold 3 acres of land and the purchasers - Sri.Byrappa, Sri.Lingaiah, Smt.Marakka and Smt.Huchamma are having 30 guntas each out of 3 acres jointly purchased through Registered Sale Deed dated 18.04.1964 and 8 guntas of land situated to the west of said 3 acres of land was retained by Sri.Mugurappa. Therefore, it is an admitted fact that 30 O.S.No.6231/2005 defendant No.1 - Smt.D.Anasuya purchased 30 guntas of land from Sri.Byrappa through a Registered Sale Deed dated 12.12.1968 and again purchased 7 guntas of land from Smt.Huchamma out of her 30 guntas of land and remaining 23 guntas was purchased by Sri.Gopinatha Rao. It is an admitted fact that one Sri.Thibbaiah S/o. Sri.Mugurappa filed O.S.No.2048/1981 for partition and separate possession of his share in old Sy.No.26 (new Sy.No.36) of Laggere Village, Bangalore. During the pendency of the said suit the present defendant No.1 - Smt.D.Anasuya got herself impleaded in the said suit and filed counter claim.
19. In the said suit, the vendors of the present plaintiffs have led evidence. Copy of the judgment in O.S.No.2048/81 is produced at Ex.P9 and elaborate discussion was made appreciating the evidence given by the parties in that suit. Therefore, it is clear from the observations made in that suit that the family of Sri.Mugurappa owned only 8 guntas of land to the west of the property that is purchased by Smt.D.Anasuya from Sri.Byrappa. The judgment goes to show that the suit filed 31 O.S.No.6231/2005 by the plaintiff - Sri.Thibbaiah S/o.Sri.Mugurappa against the defendants came to be dismissed and counter claim filed by defendant No.21, who is Smt.D.Anasuya, present defendant No.1 in this suit, was partly allowed, declaring that she is the absolute owner in possession of 30 guntas of land in Sy.No.36 of Laggere Village as shown in the schedule to the counter claim. Ex.P10 is the appeal memo in RFA.No.379/1999 and Ex.P11 is the certified copy of judgment passed by the Hon'ble High Court of Karnataka in RFA.No.379/1999 dated 05.02.2002, challenging the judgment passed in O.S.No.2048/81 by this court, wherein Hon'ble High Court has modified the decree of the trial court by holding that appellant - Smt.D.Anasuya, who is defendant No.21 before the Trial Court, is declared as full and absolute owner of 30 guntas of land, which is described in the decree of the Trial Court and that the buildings constructed by the respondents on the schedule property shall be demolished by the respondents in the said appeal within 3 months from the date of judgment and failing which the appellant is entitled to execute the decree for demolition of the said buildings at the cost of the 32 O.S.No.6231/2005 respondents in the appeal. Ex.P12 is the decree passed in the said RFA.
20. Therefore, the positive case made up by the defendants in this suit that by filing Execution Petition No.2593/2002 Smt.D.Anasuya had executed the decree against the judgment debtors and the illegal structures put up were got demolished through the process of the court. For the perusal of the court for better appreciation certified copy of the order passed in Execution Petition No.2593/2002 dated 23.07.2016 is produced by the defendants. Therefore, it is contended that the present suit schedule-A, B and C properties are the subject matter comprised in suit schedule in O.S.No.2048/1981, as such the decree passed in O.S.No.2048/1981, in RFA.No.379/1999 and in RFA.No.202/1999 has reached its finality. As such, again without challenging the said decree passed by the Hon'ble High Court before the Hon'ble Supreme Court, by misrepresenting the fact again the present plaintiffs have filed the instant suit. As such, the relief claimed by the present plaintiffs is hit by principles of res-judicata and the plaintiffs are not entitled to any of the 33 O.S.No.6231/2005 reliefs claimed in the present suit. Whereas, the plaintiffs have contended that the defendants played fraud upon the court and obtained decree in O.S.No.2048/1981, as such they have right to file the present suit. Since the comprehensive relief is claimed in the present suit, heavy burden is on the plaintiffs to establish that earlier decree is not binding on them and it was got obtained by Smt.D.Anasuya and others by exercise of fraud on the court by misrepresenting the facts.
21. The schedule mentioned properties in the plaint are as follows:-
Schedule-A All the piece and parcel of property No.1 and 2 in Old Sy.No.26, New Sy.No.36 of Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore, measuring East to West:40 feet and North to South:60 feet and bounded:
East by: Private Property;
West by: 30 feet Road;
North by: 30 feet Road and
South by: Private property.
34 O.S.No.6231/2005
Schedule-B
All the piece and parcel of property No.3 in Old Sy.No.26, New Sy.No.36 of Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore, measuring East to West:40 feet and North to South:30 feet and bounded:
East by: Private Property;
West by: Road;
North by: Site No.2 and
South by: Site No.4.
Schedule-C
All the piece and parcel of property No.4 in Old Sy.No.26, New Sy.No.36 of Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore, measuring East to West:40 feet and North to South:30 feet and bounded:
East by: Private Property;
West by: 30-0 feet Road;
North by: Site No.3 and
South by: Site No.5.
22. Whereas the counter claim schedule properties pleaded by defendants 4 to 6 are as under:
Counter claim A-Schedule Property of Defendant No.4 All the piece and parcel of house site bearing No.11 and 12 formed in Sy.No.36, old 35 O.S.No.6231/2005 Sy.No.26 of Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk, now BBMP Ward No.13, 17th Main Road, 9th Cross, measuring East to West:40 feet and North to South:60 feet, together with 2 tenements construction of
22 squares of RCC building and same is bounded on:
East by: Property of Smt.D.Anasuya;
West by: Road;
North by: Property No.10 and
South by: Property No.13.
Counter claim B-Schedule Property of
Defendant No.5
All the piece and parcel of house site bearing No.13 and 14 formed in Sy.No.36, old Sy.No.26 of Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk, now BBMP Ward No.13, 17th Main Road, 9th Cross, measuring East to West:40 feet and North to South:60 feet, together with AC sheet roofed house of 3 squares with electricity and water connection and same is bounded on:
East by: Property of Smt.D.Anasuya;
West by: Road;
North by: Property No.12 and
South by: Property No.15.
36 O.S.No.6231/2005
Counter claim C-Schedule Property of
Defendant No.6
All the piece and parcel of house site bearing No.9 and 10 formed in Sy.No.36, old Sy.No.26 of Laggere Village, Yeshwanthapura Hobli, Bangalore North Taluk, now BBMP Ward No.13, 17th Main Road, 9th Cross, measuring East to West:40 feet and North to South:60 feet, together with AC sheet roofed house of 3 squares with electricity and water connection and same is bounded on:
East by: Property of Smt.D.Anasuya;
West by: Road;
North by: Property No.8 and
South by: Property No.11.
23. If we go through Ex.D25 - Decree passed in O.S.No.2048/1981, wherein the counter claim schedule properties of Smt.D.Anasuya is clearly referred therein. The very same properties are covered under the present counter claim mentioned schedule properties raised by the defendants 4 to 6. The learned counsel for the defendants invited the attention of the court to the judgment passed by this court in O.S.No.2048/1981 - Ex.D24, wherein while answering Issue No.1 in page No.9 of the judgment it has been clearly observed that the Partition Deed effected 37 O.S.No.6231/2005 between Sri.Mugurappa and his sons dated 22.08.1964 in respect of the entire extent of Sy.No.36 of Laggere Village has no sanctity at all for the reasons discussed by the court. Again in page No.12 a clear finding was given that the Sale Deeds executed Sri.Mugurappa in favour of the defendants 4 to 20 in that case have got no legal sanctity and it has been observed that the plaintiffs in that suit have failed to prove how the Sale Deeds executed by the defendants 1 to 3 in favour of defendants 4 to 20 are not binding on them. Therefore, the learned counsel for the defendants in this suit argued that the Sale Deeds, Agreements and Affidavits relied by the present plaintiffs in this suit have no sanctity at all. It has been clearly observed that Sri.Mugurappa has sold 3 acres of land out of 3 acres 8 guntas purchased by him in favour of Sri.Byrappa and 3 others and Sri.Mugurappa cannot form 22 sites in 8 guntas of land retained by him lying to the west of 3 acres of land sold by him. Therefore, the Trial Court has refused to grant mandatory injunction claimed by Smt.D.Anasuya, that is the reason she has challenged the said judgement and decree in RFA.No.379/1999 and same came to be allowed by 38 O.S.No.6231/2005 judgment dated 05.02.2002 as per Ex.P11 and the decree was modified by allowing the appeal directing the respondents in that case to demolish the illegal constructions put up by them in the property belonged to Smt.D.Anasuya. Basing the said decree passed by the Hon'ble High Court Smt.D.Anasuya has filed Execution Petition No.2593/2002 and got demolished the illegal structures put up in the counter claim decree schedule. Therefore, it is necessary to appreciate the findings given by the Hon'ble High Court in RFA.No.379/1999 by re- appreciating the evidence. It has been observed that Smt.D.Anasuya who was the appellant in that case has given boundaries of 30 guntas of land as claimed by her and Trial Court granted decree holding that she is the owner of the property by appreciating the evidence. Therefore, it has been observed that there was no difficulty for the Trial Court to grant delivery of possession and also to issue mandatory injunction to demolish the unauthorized structures put up by the defendants over her property and modified the decree. Therefore, clear finding given by the Trial Court as well as Hon'ble High Court holding that 39 O.S.No.6231/2005 Smt.D.Anasuya was owner of 30 guntas of land purchased from Sri.Byrappa and Sri.Mugurappa had retained only 8 guntas of land, which is lying to the western side of property belonged to Smt.D.Anasuya. Ex.D27 - certified copy of the order passed in C.P.No.1354/2002 in RFA.No.202/1999 dated 29.11.2002 filed by Smt.D.Anasuya, wherein the boundaries mentioned in judgment para No.18 was corrected by adding word 'west' as 'east' and 'east' should be corrected as 'west' in page 18 of the judgment.
24. Here, at this stage, the cross-examination of PW- 1 at page No.22 he has clearly admitted that Sri.Mugurappa had sold 3 acres of land out of 3 acres 8 guntas and he has retained 8 guntas of land to the west of 3 acres of land sold by him. Therefore, the location of the property what is admitted by PW-1 that his erstwhile vendor Sri.Mugurappa had retained only 8 guntas of land which was lying to the west of 3 acres of land sold and out of that 3 acres, 30 guntas purchased by Smt.D.Anasuya from Sri.Byrappa which was lying to the east of the said 8 guntas of land retained by Sri.Mugurappa and in the previous round of 40 O.S.No.6231/2005 litigation in O.S.No.2048/1981 and RFA.No.379/1999 by appreciating the evidence because Sri.Mugurappa was the party in that suit. It was recorded that all the contentions of Sri.Mugurappa are negatived by observing that he was having only 8 guntas of land which is lying to the west of 30 guntas of land belonged to Smt.D.Anasuya. Now, PW-1 claims that he is in possession of 8 guntas of land. However, he admits that Smt.D.Anasuyamma had purchased 30 guntas of land which is lying to the east of 8 guntas of land retained by Sri.Mugurappa. In page No.23 of the cross-examination of PW-1, there is a clear admission by him that in the said 8 guntas of land of Sri.Mugurappa 20 sites cannot be formed. Though he tried to give explanation that another 10 guntas of phut kharab was also in possession of Sri.Mugurappa. But he admits that he has not produced any documents to show that there is phut kharab of 10 guntas of land along with 8 guntas of land was possessed by Sri.Mugurappa.
25. Here, PW.2 - Sri.K.Varadaraju is one the defendants in the previous litigation had suffered decree and unauthorized construction put up by him was 41 O.S.No.6231/2005 demolished by the orders of Hon'ble High Court in Execution Petition No.2593/2002. The sketch which is prepared by said Sri.K.Varadaraju which is produced by the plaintiffs at Ex.P29. In the cross-examination of PW-2 he admits that he himself has prepared Ex.P29 - Sketch by showing that as many as 22 sites were formed in the land retained by Sri.Mugurappa which situated to the extreme western side of new Sy.No.36, old Sy.No.26. According to him, he has prepared it by seeing the spot. This contention was negatived in the earlier suit as well as before the Hon'ble High Court and the evidence that 22 sites could be formed in 8 guntas of land retained by Sri.Mugurappa is an impossibility and it was declared that Smt.D.Anasuya was owner of 30 guntas of land purchased by her from Sri.Byrappa. Therefore, it is needless to say that Ex.P29 has no basis at all. Somehow, he has joined hands with the plaintiffs and has given evidence in this case. In the cross- examination of PW-2, he has stated that he has filed Misc. Petition No.27/1999 and later on withdrawn it. However, he has stated that he is aware of the order passed in RFA.No.379/1999, he has not challenged the said order 42 O.S.No.6231/2005 before the Hon'ble Supreme Court, though he has raised objections in execution petition but all his contentions were negatived by the court, ordered to demolish the structure put up by him.
26. Though, in the present suit it is contended that Smt.D.Anasuya had obtained decree in earlier litigation by exercise of fraud, but how fraud was exercised. The evidence of the plaintiffs is not satisfactory. Because the vendors of the plaintiffs were the party in earlier litigation had given evidence and the Hon'ble High Court has appreciated the evidence holding that Sri.Mugurappa had retained only 8 guntas of land and nothing more and all the contentions of extra phut kharab land of 10 guntas was also in his possession and other contentions raised now, has already been decided in the earlier suit.
27. PW-1 has filed O.S.No.1988/1999. The written statements filed by defendant No.21 and 22 in the said suit are produced at Ex.D10 and Ex.D11. He claims that he is unaware of the shape of the property and according to him there was no measurement. As there is a mention in the 43 O.S.No.6231/2005 Sale Deed that Sy.No.37 was belonged to one Sri.Motappa, that is the reason he has mentioned the name of Sri.Motappa in the sketch prepared at Ex.P29. A thorough cross-examination was made to PW-2 and he admits that at the time of filing objections under Ex.D10 he was knowing about RFA.No.202/1999, but falsely deposed before the court that he was unaware of it. He claims that now his advocate informed him. It is an admitted fact he has not challenged the decree is RFA.No.379/1999, but admits that in the said execution petition Smt.D.Anasuya has filed memo stating that she has taken possession of the property. But he claims that by cheating showing some other property she has managed to get an order. When in a regular suit and Hon'ble High Court has re-appreciated the evidence, confirmed that Smt.D.Anasuya has purchased 30 guntas of land from Sri.Byrappa and acquired title and to the west of that 30 guntas, 8 guntas of land belonged to Sri.Mugurappa situated and that finding has reached its finality. Therefore, question of fraud exercised by her showing some different property and manage to get decree, doesn't arise at all. He has deposed that on the basis of 44 O.S.No.6231/2005 Possession Certificate, Affidavit and Power of Attorney Sri.Mugurappa had filed the suit and those documents have been effected in the year 1996.
28. Ex.P17 is the certified copy of cancelled GPA dated 21.05.1996. Ex.P18 is the certified copy of cancelled Agreement of Sale dated 04.06.1988. Ex.P19 is the certified copy of cancelled Affidavit. Ex.P20 is the cancelled GPA dated 22.11.1986. Ex.P21 is the certified copy of cancelled Agreement of Sale dated 22.11.1986. Ex.P22 is the certified copy of the cancelled Affidavit. Ex.P23 is the certified copy of cancelled Agreement of Sale dated 23.12.1997. Ex.P24 is the certified copy of cancelled GPA dated 23.12.1987. Ex.P25 is the certified copy of cancelled GPA dated 10.10.1991. Ex.P26 is the certified copy of cancelled Agreement of Sale dated 10.10.1991. Ex.P27 is certified copy of cancelled Affidavit. PW-2 admits that Ex.P17 to Ex.P27 were the documents called in Execution Petition No.2593/2002. Further, Ex.D12 is the certified copy of the Affidavit filed by PW-2 in R.P.No.238/2002, which was filed by him before the Hon'ble High Court. That means, an effort was made by him to obtain a stay order in 45 O.S.No.6231/2005 RFA.No.379/1999. But his contention that he had put up structure in the property purchased from Sri.Mugurappa was declined by the court in execution petition and construction put up by him was demolished, vacant possession was delivered to Smt.D.Anasuya. DW-1 has deposed that he himself has showed the suit schedule properties to the Court Commissioner who has visited the spot. PW-2 admits in the cross-examination that since 1981 he is against Smt.D.Anasuyamma i.e., defendant No.1 in this suit. According to him, he got executed Sale Deeds from Sri.S.R.Sudarshan, Smt.Gunamba and Smt.Nalini Sriram, who were the defendants 9, 10 and 18 in O.S.No.2048/1981 and the said suit came to be dismissed and counter claim filed by Smt.D.Anasuyamma was decreed. He admits that on 05.02.2002 Hon'ble High Court has passed order as per Ex.P11. Though he has pleaded ignorance about Execution Petition No.2593/2002 filed against him, the judgment copy is produced for perusal of the court shows that he has deposed falsely. Though he claims that his site bearing Nos.7 and 8, but he has not produced any documents regarding the title deeds. The 46 O.S.No.6231/2005 evidence given by this witness though he claims that he has seen the documents of the plaintiffs, but clearly deposed that the plaintiffs are not having any registered documents, but they have got a registered GPAs. He has not seen any documents to show the possession of the plaintiffs. Therefore, the evidence of PW-2 which is quite contrary to the findings given by this court in previous litigation in O.S.No.2048/1981 and RFA.No.379/1999, independently his evidence is not worth to be appreciated that Smt.D.Anasuya had misled the court and obtained decree by showing different boundaries. Because the title deed of Smt.D.Anasuya and her erstwhile owner - Sri.Byrappa and other documents which were produced in the evidence were appreciated to find out the boundaries showed to counter claim schedule property in the earlier litigation and it was held that she was the owner of 30 guntas of land and only to the west of that 30 guntas Sri.Mugurappa had retained 8 guntas of land and nothing more.
29. In the cross-examination of PW-1, he has stated that he has not verified any documents before purchase of suit properties. Though he wanted to state the boundaries 47 O.S.No.6231/2005 what is mentioned in the schedule of the plaint, but it has no basis at all. Because basing on the boundaries of title deeds of Sri.Mugurappa, his erstwhile vendor, earlier suit was decided and the plaintiff is not permitted to canvass his own boundaries by inserting new case in the present suit. He wanted to say that total extent of old Sy.No.26, new Sy.No.36 of Laggere Village is 4 acres 20 guntas. The cross-examination of PW-1 reveals the flow of title and change of earlier vendors what is spoken by him, but fact remains that 3 acres 8 guntas of land was only purchased by Sri.Mugurappa. Therefore, including the phut kharab he was in possession of 4 acres 20 guntas of land what is stated by PW-1 cannot be appreciated at all. The other contention that after selling 3 acres, to the west of the said land he has retained 8 guntas, he was in possession of phut kharab of 10 guntas is contrary stand taken against the contention that he was owning 1 acre 20 guntas at that place and such improvement made in this suit cannot be appreciated at all. The evidence given by PW-1 that in O.S.No.2048/1981 1 acre 18 guntas of land was the suit property and to the east 30 guntas of land belonged to 48 O.S.No.6231/2005 Smt.D.Anasuya was shown. The counter claim property set up by Smt.D.Anasuya wherein she has stated western side of 30 guntas of land purchased from Sri.Byrappa remaining land in Sy.No.36 of Laggere Village. Here, the extent and boundaries what is stated in the earlier suit and the entire evidence given by the parties was appreciated and it is held that Sri.Mugurappa has retained only 8 guntas of land lying to the west of 30 guntas of land purchased by Smt.D.Anasuya from Sri.Byrappa. Hon'ble High Court has confirmed the said finding.
30. In the present case the whole assertions and counter attack by the parties lingering on the issues that whether the plaint schedule properties are within the boundaries of 30 guntas of land belonged to defendant No.1
- Smt.D.Anasuya or it is within 8 guntas of land retained by Sri.Mugurappa. Whether the plaint schedule properties are within 30 guntas or not is the issue.
31. Ex.P1 is the Registered Sale Deed dated 19.02.1981, through which Sri.S.R.Sudarshan had purchased 2.2 guntas of land in Sy.No.36 of Laggere. Ex.P2 49 O.S.No.6231/2005 is the original Sale Deed dated 19.02.1981, through which Mrs.M.S.Gunamba had purchased 1.1 guntas from out of 1 acre 20 guntas in Sy.No.36 of Laggere Village. Ex.P3 is the original Agreement of Sale executed by Sri.S.R.Sudarshan in favour of plaintiff No.1 and one Sri.Kumar in respect of Site No.1 mentioned in A-schedule. Ex.P4 is the original Declaration given by Sri.S.R.Sudarshan and duty and penalty was paid as per rules, that is the reason admitted in evidence. Likewise, Ex.P5 is the original Agreement of Sale dated 22.07.1996 executed by Smt.Nalini Sriram in favour of Sri.C.Krishna i.e., plaintiff No.2 in respect of Site No.3 in Sy.No.36 of Laggere Village i.e., B-schedule property. Ex.P6 is the Agreement of Sale executed by Mrs.M.S.Gunamba in respect of C-schedule property in favour of Sri.C.Krishna. Ex.P5 and Ex.P6 also marked in the evidence of PW-1 as he has paid duty and penalty. The very same boundaries were shown in the plaint schedule-A, B and C. Certified copy of the plaint in O.S.No.2048/1981 is produced at Ex.P7, wherein erstwhile vendor of the plaintiffs Sri.Mugurappa was defendant No.1, it was filed by Sri.Thibbaiah s/o. Sri.Mugurappa. Ex.P8 is the certified copy of amended 50 O.S.No.6231/2005 written statement filed by Smt.D.Anasuya i.e., defendant No.21 in that suit. Ex.P13 is the certified copy of the plaint in O.S.No.1988/1999 filed by Smt.D.Anasuya against Sri.Manoharlal.K.Narang and 22 others, wherein PW.2- Sri.Varadarjulu is defendant No.22. In the said suit she has prayed the relief of injunction in respect of 30 guntas of land purchased by her from Sri.Byrappa. Ex.P14 is the certified copy of order sheet in the said suit. Ex.P15 is the certified copy of the memo filed by the advocate of the plaintiff and got the suit dismissed as not pressed. Ex.P16 is the memo filed advocate for Decree Holder in Execution Petition No.2593/2002 stating that the prayer in Execution Petition No.2593/2002 is fully satisfied and prayed to record E.F.S. This was appreciated in Execution Petition No.2593/2002 by the court. Ex.P28 is the certified copy of the Registered Sale Deed dated 12.12.1968, through which Smt.D.Anasuya purchased 30 guntas of land from Sri.Byrappa. The boundary of the schedule property what is mentioned is the very same property showed to counter claim schedule in O.S.No.2048/1981. Ex.P30 to Ex.P39 are the certified copies of the Registered Sale Deeds executed 51 O.S.No.6231/2005 by Sri.Mugurappa in favour of others in respect of various bits of land out of 1 acre 20 guntas in new Sy.No.36 of Laggere Village. The learned counsel for the defendants has got serious objections on the ground that Sri.Mugurappa did not had any right over the extent of land that is showed after out of 3 acres 8 guntas of land purchased by him he has sold 3 acres of land and retained only 8 guntas of land in his possession. No doubt, in all these Sale Deeds including documents the plaintiffs have relied they claim that they purchased bits of land from out of this 1 acre 20 guntas of land belonged to Sri.Mugurappa. Ex.P40 is the certified copy of the Registered Sale Deed dated 03.03.1969. PW-1 has produced original Registered GPA - Ex.P41 dated 22.04.1996 in favour of plaintiff No.1 - Sri.Mogilappa and one Sri.Kumar in favour of Site Nos.1 and 2 of A-schedule property formed out of Sy.No.36 of Laggere Village. Ex.P42 is the original registered GPA executed by Mrs.M.S.Gunamba in favour of plaintiff No.2 - Sri.C.Krishna pertains to C-schedule property and again Ex.P43 is the registered GPA executed by Smt.Nalini Sriram in favour of plaintiff No.2 in respect of Site No.3 in Sy.No.36 of Laggere 52 O.S.No.6231/2005 Village i.e., B-schedule property. Ex.P44 is the Encumbrance Certificate and Ex.P45 is the Record of Rights, which shows that Smt.D.Anasuya is owner of 30 guntas of land in her possession in Sy.No.36.
32. If we appreciate the evidence of PW-1 he claims that by virtue of GPAs executed by Sri.S.R.Sudarshan in his favour in respect of A-schedule property, Smt.Gunamba and Smt.Nalini Sriram in favour of plaintiff No.2 in respect of B and C schedule properties, they are owners in possession of suit schedule-A, B and C properties. The recitals of registered GPAs Ex.P41 to Ex.P43 they were authorized to take care of the property appear before Officers, execute document i.e., Agreement of Sale and transfer of katha etc., in favour of different persons including the power of alienation. But in this case, they did not produce any title deeds except produced GPAs and Agreements of Sale. Their contention is that they are in possession by virtue of the GPAs executed by the vendors. In the cross-examination of PW-1 he has denied that in 8 guntas of land children of Sri.Mugurappa have constructed their houses. PW-1 admits that Smt.D.Anasuyamma formed layout in 30 guntas of land 53 O.S.No.6231/2005 purchased from Sri.Byrappa and sold to defendants 4 and 5 of this case and others. He has also admitted that Smt.D.Anasuya has purchased 7 guntas of land from Smt.Huchamma and sold it. Therefore, Ex.P17 to Ex.P27 are within the knowledge of PW-1 and as those documents were cancelled because Smt.D.Anasuya has sold the property during the pendency of litigation. Though said suggestion was denied by PW-1, but fact remains the same. PW-1 has not filed any suit against Sri.S.R.Sudarshan, Smt.Nalini Sriram and Smt.Gunamba for the relief of Specific Performance of Contract. Because in the reported decision reported in (2012) 1 Supreme Court Cases 656, wherein the lordships of the Hon'ble Supreme Court at para No.24 held that:
"We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or SA/GPA/Will transfers"
do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as 54 O.S.No.6231/2005 conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Sec.53-A of the T.P.Act."
Therefore, the cross-examination of PW-1 goes to show that even he doesn't know whether Sri.S.R.Sudarshan, Smt.Nalini Sriram and Smt.Gunamba executant of GPAs are alive or not. He has not filed any complaint in the Police Station regarding their disappearance and not made any Notification in the newspapers in this regard. However, he claims that as they were in possession of the property, he had seen it and they executed GPAs in favour of the plaintiffs. As Smt.Nalini Sriram is dead, her legal heirs were brought on record as defendant No.7(a) to (c). Even this fact is also not known to PW-1. If executants of GPAs are not alive, obviously Ex.P41 to Ex.P43 doesn't have any value. PW-1 has stated that he has put up shed in A- schedule property, but it was demolished. He has not produced any documents to show the possession of his so- called vendors. He has deposed that defendants 4 to 6 in the present suit have constructed house in the property 55 O.S.No.6231/2005 which they purchased from Smt.D.Anasuya, but he claims that they have created the documents. Ex.D4 to Ex.D7 are the photographs produced evidencing the building constructed by defendants 4 to 6. However, clear admission given by PW-1 that defendant No.1 was in possession of 30 guntas plus 7 guntas of land in Sy.No.36. According to PW-1 suit schedule-A, B and C properties situated to the west of 3 acres of land which was sold by Sri.Mugurappa.
33. Now question does arise, whether the evidence of PW.1 is worth to appreciate. No doubt in the so called GPAs the boundaries are mentioned with regard to Site Nos.1 to 4 i.e., suit schedule-A, B and C properties, extent 30' x 40' each. It is simply mentioned to the East: Property belonged to others and to the West: 30 feet Road. If we appreciate the schedule of the erstwhile vendors of Smt.D.Anasuya and also counter claim schedule property in the previous litigation and it was decided that Sri.Mugurappa had retained only 8 guntas of land and formation of sites what is alleged Site Nos.1 to 4 which is lying to east of 30 feet road, certainly is a non-existent property. Once it is the case that 56 O.S.No.6231/2005 22 sites were formed in 8 guntas of land, it is an impossibility and even if the Power of Attorneys - Ex.P41 to Ex.P43 disclose about suit schedule-A, B and C properties, but if the location of the property is considered, what is decided in earlier suit including the judgment passed by the Hon'ble High Court, only 8 guntas of land was held by Sri.Mugurappa and certainly the lie of land what is contended by the plaintiffs was within the area which counter claim was decreed in the earlier suit and confirmed by the Hon'ble High Court. By executing the decree the structures put up therein were demolished and subsequently Smt.D.Anasuya had sold the sites and the defendants 4 to 6 have put up structures stands proved by the evidence brought on record. Therefore, if at all the plaintiffs claim that by virtue of Ex.P41 to Ex.P43 - Registered GPAs and Agreements of Sale, their remedy was to file a suit against their vendors for Specific Performance of Contract and GPAs and Agreements of Sale provide a right for them to enforce for the said relief and not against the present defendants. Therefore, the claim made by the plaintiffs that they are the absolute owners in possession of 57 O.S.No.6231/2005 suit schedule-A, B and C properties cannot be appreciated at all. They failed to prove to the satisfaction of the court regarding the existence of suit schedule-A, B and C properties and they are in lawful possession and enjoyment of the same and also failed to prove the alleged interference by the defendants to their enjoyment.
34. On the contrary, the evidence given by the defendants' side goes to show that the suit schedule properties are the part of the property which is the subject matter of counter claim schedule property in O.S.No.2048/1981, which was belonged to defendant No.1
- Smt.D.Anasuya. Now, after her death, her son - DW.1 has sold the property by preparing sites. In 30 plus 7 guntas of land belonged to Smt.D.Anasuya sites were formed and sold to others including the defendants 4 to 6, is not denied by PW-1. They vaguely stated that they have created the documents. What is stated by PW-1 thus cannot be appreciated.
35. The defendant No.5 - Sri.Andanappa is examined as DW-2 in this case. In his evidence he has categorically 58 O.S.No.6231/2005 stated that they constructed the house and they are in possession and enjoyment of the properties in question. The plaintiffs cannot claim the relief of declaration, injunction and also delivery of possession from the defendants 4 to 6. On the contrary, they raised counter claim for the protection of their properties and sought the relief of injunction as they are in actual possession and enjoyment of the properties. Ex.D35 is the certified copy of the Registered Sale Deed dated 03.02.2005, through which defendant No.5 - Sri.Andanappa purchased site Nos.13 and 14 in Sy.No.36 covered within the boundaries shown in the schedule of the document which is mentioned in the counter claim schedule, extent East to West:40 feet and North to South:60 feet and he has been in possession and enjoyment of the same. Ex.D36 is the Encumbrance Certificate produced, evidencing the purchase of property by him. Ex.D37 is the Assessment Register Extract standing in the name of Sri.Andanappa. Ex.D38 is the tax paid receipt. Ex.D39 is the electricity bill evidencing that he has installed electricity to the house constructed by him what is seen in the photographs produced at Ex.D4 to 59 O.S.No.6231/2005 Ex.D7. Again Ex.D40 is the certified copy of the Registered Sale Deed pertains to defendant No.6 - Sri.Ramamurthy, evidencing that he has purchased site Nos.9 and 10, extent 40' x 60' what is mentioned in counter claim schedule morefully covered within the boundary stated therein. Ex.D41 is the electricity bill evidencing that he had constructed a house and installed electricity connection. Ex.D42 is the certified copy of the Registered Sale Deed Sale Deed 28.01.2005, evidencing defendant No.4 - Sri.Ganga purchased site Nos.11 and 12 in Sy.No.36, morefully described in counter claim schedule property within the boundary stated therein and he has constructed house and installed electricity connection as evidenced by Ex.D43 electricity bills. Therefore, it is clear that the defendants 4 to 6 are in possession of the respective sites purchased by them from Smt.D.Anasuya. In these Registered Sale Deeds, the western boundary is showed as road, which through light on the fact that the contention of the plaintiffs that suit schedule-A, B and C properties to its west 30 feet road. That means, the plaintiffs are claiming the very same property, which belonged to Smt.D.Anasuya 60 O.S.No.6231/2005 which was the counter claim schedule property in the previous litigation O.S.No.2048/1981. Therefore, it was needless to say that it was already decided by this court in the earlier comprehensive suit and it is declared that Smt.D.Anasuya was the owner of 30 guntas of land purchased from Sri.Byrappa and she is entitled to get demolish the unauthorized structures put up by some of the defendants in the earlier suit and by Hon'ble High Court has confirmed the said finding and also modified the decree directing the encroachers to deliver the possession. She has already executed the decree and layout was formed and she has sold the sites. The present defendants 4 to 6 have purchased the sites and they are in possession and enjoyment of the respective sites purchased by them. The whole efforts made by the plaintiffs to confuse the issue as if under Ex.P41 to Ex.P43 - GPAs and Agreements of Sale - Ex.P2 to P4, they became owners of the site Nos.1 to 4 what is mentioned in suit schedule-A, B and C and they are in possession of the same. In fact, nothing worth evidence is produced to believe atleast their possession in respect of suit schedule-A, B and C properties. In reality, evidence 61 O.S.No.6231/2005 goes to show that the plaintiffs are not at all in possession of suit schedule-A, B and C properties and such properties are not at all in existence. The imaginary boundary that is showed in the GPAs and Agreements of Sale, so invented just to harass Smt.D.Anasuya and the purchasers of sites from Smt.D.Anasuya as rightly argued by the learned counsel for the defendants.
36. Though DW-1 and DW-2 were cross-examined by the learned counsel for the plaintiffs, but nothing worth is elicited from their mouth which is helpful to the case of the plaintiffs. The defendants are produced the certified copies of the Sale Deeds of vendors of Smt.D.Anasuya and flow of title to her as per Ex.D13 to Ex.D23. Certified copy of the judgment and decree in O.S.No.2048/1981 are produced at Ex.D24 and Ex.D25. Certified copy of judgment in RFA.No.202/1999 and order passed in C.P.No.1354/2002 is produced at Ex.D26 and Ex.D27. Certified copy of judgment in RFA.No.379/1999 and order passed in R.P.No.238/2002 is produced at Ex.D28 and Ex.D29. The relevant copies are produced by the plaintiffs also, which are discussed by this court. Certified copy of Village Map is 62 O.S.No.6231/2005 produced at Ex.D31. This shows the location of old Sy.No.26. Smt.D.Anasuya filed a suit against Commissioner, BBMP and others in O.S.No.3652/1998 and in the said suit decree was passed, restraining them from collecting betterment charges and registering the katha pertaining to the schedule property in that suit in the name of defendants 3 to 25 in that suit. The vendors of the plaintiffs were also parties to the said suit. Ex.D33 is the decree passed in the said suit. Ex.D34 is the sketch produced in that suit, which shows 30 guntas of land belonged to Smt.D.Anasuya and to its west 8 guntas of land retained by Sri.Mugurappa. Therefore, the vendors of Smt.D.Anasuya together purchased 3 acres of land and they got partitioned was appreciated in the earlier suit and counter claim mentioned property of 30 guntas belonged to Smt.D.Anasuya, she was declared as owner and her right to get demolish structures put up unauthorisedly by the encroachers and to get vacant possession. Therefore, identity and location of the property belonged to Smt.D.Anasuya was earlier decided and looking to the extent of the property which Sri.Mugurappa purchased and 63 O.S.No.6231/2005 sold, absolutely the claim of the present plaintiffs that 1 acre 20 guntas phut kharab was also enjoyed by him and that is lying to the west of the property belonged to Smt.D.Anasuya, cannot be appreciated at all. Because the said property and its location was altogether in different place and what was decided that to the west of property belonged to Smt.D.Anasuya is only 8 guntas in Sy.No.36 and nothing more. In the cross-examination of DW-1, he has clearly stated that suit schedule-A, B and C properties i.e., Site Nos.1, 2, 3 and 4 are not in existence and the defendants 4 to 6 are in possession of their respective sites by constructing the houses. Therefore, the plaintiffs wanted to push the property of defendant No.1 - Smt.D.Anasuya and other owners to again towards eastern side. So that, they could encroach upon the property belonged to Smt.D.Anasuya and such attempt was negatived by the court in the earlier litigation. Therefore, it can be said that the defendants are justified in contending that the claim made by the present plaintiffs about suit schedule-A, B and C properties which was the part and parcel of counter claim schedule property earlier decided in the previous litigation 64 O.S.No.6231/2005 and confirmed the Hon'ble High Court. DW-2 in the cross- examination has stated that vendors of the plaintiffs i.e., Smt.Nalini Sriram, Sri.S.R.Sudarshan and Mrs.M.S.Gunamba are parties in the earlier litigation. Therefore, the contention of the learned counsel for the plaintiffs that Smt.D.Anasuya has purposely given wrong boundaries to the schedule in counter claim schedule property in O.S.No.2048/1981 and obtained decree by exercise fraud on the court, cannot be appreciated at all. Further, the contention that she has abandoned her claim against all other defendants including the vendors of the plaintiffs in RFA.No.379/1999 also cannot be appreciated, because arising out of the Trial Court was not pleased to grant the relief of mandatory injunction and delivery of possession, only against those parties appeal was filed. However, in RFA.No.202/1999 it was challenged by Sri.M.G.Parappa against the dismissal of the suit, all the vendors of the plaintiffs and other defendants are parties. In that appeal also, the boundaries mentioned by Smt.D.Anasuya in the counter claim schedule property was discussed having taken into consideration of her vendors 65 O.S.No.6231/2005 title deeds, boundaries and other evidence brought on record and held that when the western boundary of the property in the Sale Deed dated 12.12.1968 is considered with the counter claim property. There is no discrepancy in the schedule and defendant No.21 - Smt.D.Anasuya was the owner of the property of 30 guntas and appeal came to be dismissed. That means, elaborately Hon'ble High Court has considered and appreciated the evidence with reference to earlier title deeds and schedule mentioned properties and held that Sri.Mugurappa retained only 8 guntas of land in Sy.No.36 which is lying to the west of 30 guntas of land belonged to Smt.D.Anasuya and she was declared as owner of the said property. DW-1 has categorically stated that 30 guntas of land purchased and another 7 guntas of land purchased under Sale Deeds Ex.P28 and Ex.P40 are lying adjacent to it, that can be borne out from the previous litigation sketch - Ex.P34. Therefore, the arguments canvassed that 7 guntas of land purchased under Ex.P40 is at the extreme east in 3 acres, cannot be appreciated, because the lie of the land which she has purchased 30 guntas from Sri.Byrappa and another 30 guntas of land 66 O.S.No.6231/2005 belonged to Smt.Huchamma was adjacent to it and she has purchased it from Smt.Huchamma and remaining 23 guntas of land was retained by her was sold to Sri.Gopinatha Rao. As the entire arguments canvassed by the plaintiffs was earlier decided and Hon'ble High Court has appreciated the boundaries with reference to the title deeds and confirmed the findings given by the lower court. Therefore, the arguments canvassed by the learned counsel for the plaintiffs is not convincing. Therefore, under the circumstances the contention that there was no order against the present plaintiffs, as such there is nothing to challenge before the Higher Court cannot be appreciated. Because in this case, appreciation of evidence goes to show that the claim made by the plaintiffs with regards to suit schedule-A, B and C properties is not at all in existence and there is no chance of they being in lawful possession and enjoyment of the property, having taken into consideration of long standing litigation and earlier findings given in the previous litigation. If that being so, as per the admission of PW-1 and PW-2 their vendors have not challenged the decree passed in O.S.No.2048/1981, RFA.No.379/1999 and 67 O.S.No.6231/2005 RFA.No.202/1999 before Hon'ble Supreme Court of India and it has reached its finality. Certainly facts decided in respect of the property between the same parties, because Sri.Mugurappa and vendors of the present plaintiffs were parties in the earlier suit, certainly in respect of the very same property or part of it by showing new boundaries to suit schedule-A, B and C properties the plaintiffs cannot file this suit as it is hit under Section 11 of CPC barred by principles res-judicata.
37. Therefore, it is needless to say that the plaintiffs have failed to prove that they are in lawful possession and enjoyment of the suit schedule property and they failed to prove their title. No title deeds or any other documents worth to appreciate is produced by them. As such, they are failed to prove that they are the absolute owners of suit schedule-A, B and C properties. The allegation made by the plaintiffs that the defendants by making encroachment of suit schedule properties constructed building illegally is also not proved. Because when they failed to prove their possession and also existence of suit schedule-A, B and C properties, on the contrary the defendants 4 to 6 have 68 O.S.No.6231/2005 established the purchase of the property and construction of the building and they are in possession and enjoyment of counter claim schedule properties. Therefore, the contention of the plaintiffs that the Sale Deeds dated 28.01.2005, 03.02.2005 and 07.02.2005 of the defendants namely Ex.D35, Ex.D40 and Ex.D42 is null and void and not binding on the rights of the plaintiffs also held as not proved. Because in the earlier litigation the title of Smt.D.Anasuya was held as proved and declared by the court and the layout prepared, sites formed and defendants 4 to 6 have purchased the sites for consideration through Registered Sale Deeds. Whereas, vendors of the plaintiffs do not have such rights and it is hard to believe that in 8 guntas of land 22 sites were formed and the plaintiffs have failed to prove their title as well as possession in respect of the suit schedule properties. Therefore, under the circumstances the allegation that in the earlier litigation Smt.D.Anasuya had committed fraud on the court by showing wrong boundary and manage to get decree in O.S.No.2048/1981 also held as not proved.
69 O.S.No.6231/2005
38. The learned counsel for the plaintiffs relied on a decision reported in 2006 Crl.L.J. 231 in the case of Narendra Singh Rana v. State of U.P, wherein it is held that:
"Prima facie fraudulently action of land grabbing was made out. It was fraud of beneficiary in connivance of Revenue officials".
He has also relied on decision reported 2005 Supreme Court Cases (Cri) 1322, in the case of MCD v. State of Delhi and another, wherein it is ruled that:
"Litigant withholding a vital document or suppressing a material fact in order to gain advantage in the case, held, would be guilty of playing fraud on court as well as on opposite party".
The other decision reported relied reported in 2005 AIR SCW 4094 in the case of Bhaurao Dagdu Paralkar v. State of Maharasthra and others, wherein their lordships have held that under Section 17 of the Contract Act, fraud and collusion vitiate even most solemn proceedings in any civilized system of jurisprudence. Though the decisions cited relating to the criminal cases, however mere alleging 70 O.S.No.6231/2005 that fraud was played on the court is not sufficient, facts have to be pleaded, incidents of fraud committed by the Smt.D.Anasuya need be proved to the satisfaction of the court and evidence is insufficient and vague pleading in made. On the contrary, absolutely in the previous litigation Hon'ble High Court has confirmed the finding given by the lower court and title and possession of Smt.D.Anasuya in respect of counter claim property was upheld and said decision has reached its finality, same cannot be again allowed to challenge by the present plaintiffs in this suit. Though it is vaguely alleged that she has committed fraud, but the plaintiffs have failed to prove the same to the satisfaction of the court. On the contrary, the voluminous evidence produced both oral and documentary, earlier finding given in the previous litigation which has reached its finality and again it is re-appreciated in this suit, this court is of the considered view that there is no justification for the plaintiffs to make allegations against defendant No.1 - Smt.D.Anasuya and more particularly her title and possession was already been decided. As regards the non- existent property without there being in possession, without 71 O.S.No.6231/2005 having title, the plaintiffs have come up with this suit seeking various reliefs including of declaration of title, injunction, possession, mandatory injunction etc., which is not at all available for them. It is held that the defendants have proved that the present suit schedule properties were comprised the counter claim schedule property in O.S.No.2048/1981. Therefore, the present suit is hit by principles of res-judicata. Accordingly, I answer Issue Nos.1 to 4 in the negative and Issue No.7 in the affirmative, Additional Issue No.1 in the negative and Additional Issue Nos.2 and 3 in the affirmative.
39. Issue No.5:-
In this suit, the plaintiffs have claimed the relief of declaration, to declare that the plaintiffs 1 and 2 are full and absolute owners of suit schedule-A, B and C properties. For the detailed discussions made hereinabove the plaintiffs claim is based on the registered power of attorneys - Ex.P41 to Ex.P43 and also Agreements of Sale - Ex.P2 to Ex.P4 executed in their favour by their vendors i.e., Sri.S.R.Sudarshan, Smt.Nalini Sriram and 72 O.S.No.6231/2005 Mrs.M.S.Gunamba. They are not the documents of title. Even they failed to prove their lawful possession over the suit schedule properties. The defendants have established that suit schedule-A, B and C properties are non-existent properties. Therefore, the plaintiffs have utterly failed to prove that they are the absolute owners of suit schedule-A, B and C properties. Originally suit was only filed for the relief of injunction, later on by amending the plaint declaratory relief and other reliefs are sought. Therefore, it is held that the plaintiffs have failed to prove their title in respect of suit schedule-A, B and C properties, as such they are not entitled to the relief of declaration of ownership as claimed in the suit. Accordingly, I answer Issue No.5 in the negative.
40. Issue No.6:
It is alleged in the plaint as well as in the evidence of PW-1 that the defendants are trying to interfere with the possession of the plaintiffs and also they encroached the suit schedule properties and sought for the relief of permanent injunction and also vacant possession. Here, by 73 O.S.No.6231/2005 the evidence of DW-1 and 2 and the documentary evidence it is held that the defendants 4 to 6 have put up structures in the sites purchased by them from defendant No.1 - Smt.D.Anasuya by virtue of Sale Deeds Ex.D35, Ex.D40 and Ex.D42. They have established the counter claim schedule properties are in lawful possession and enjoyment of the defendants 4 to 6 and by erecting the buildings they are in lawful possession and enjoyment of the properties, they had taken electricity installation to their houses, by making payment of taxes to the BBMP are enjoying the property. The plaintiffs are not at all in possession and they are out of possession. Therefore, though after amendment the plaintiffs have sought mandatory injunction to vacate the encroachment and delivery of possession from them. But, as rightly argued by the learned counsel for the defendants, this court has dismissed I.A.No.1 filed under Order XXXIX Rules 1 and 2 of CPC seeking injunction by order dated 21.10.2006. Against the said order, the plaintiffs have preferred M.F.A.No.1164/2007, Hon'ble High Court also dismissed the same. Therefore, prima facie the plaintiffs have failed to prove their possession and the defendants 74 O.S.No.6231/2005 have established their lawful possession and enjoyment in respect of counter claim schedule properties. Therefore, as the plaintiffs do not have title and they are out of possession, they ought to value the suit under Section 29 of the Karnataka Court Fees and Suits Valuation Act and they are expected to pay court fee on the market value of the suit properties. DW-2 has pleaded the said fact in the additional written statement and also in his evidence has stated that even if nominally it is valued the court fee paid is insufficient. Further, the plaintiffs have sought the relief of cancellation of Registered Sale Deeds. Therefore, as rightly argued by the learned counsel for the defendants that they ought to have valued and pay court fee on the market value under Section 38 of Karnataka Court Fees and Suits Valuation Act. Here, the plaintiffs sought the relief of demolition of the constructions and to deliver the vacant possession and the said prayer has to be valued under Section 29 of Karnataka Court Fees and Suits Valuation Act, but the plaintiffs have valued for these reliefs under Section 24(b) and 26(c). Therefore, as rightly argued by the learned counsel for the defendants that without paying 75 O.S.No.6231/2005 requisite court fee for the reliefs claimed the plaintiffs are not at all entitled to any of the reliefs claimed and suit ought to have been rejected under Order VII Rule 11 (b) to
(d) of CPC. Therefore, it is needless to say that the plaintiffs are not entitled to the relief of permanent injunction as well as vacant possession and mandatory injunction as claimed in this suit. Under such circumstances the decisions relied by the learned counsel for the plaintiffs reported in ILR 1996 Karnataka 932, in the case of Chinnappa v. Srinivasa Reddy is not helpful to them.
Accordingly, I answer Issue No.6 in the negative.
41. Issue No.8:-
In this suit for the detailed discussions made while answering main issues, it is held that the defendants 4 to 6 have established and proved to the satisfaction of the court that they are in lawful possession and enjoyment of the counter claim schedule properties. Issue No.7 was answered in the affirmative. The evidence given by the parties goes to show that the plaintiffs wanted to dispossess the defendants by making allegations that their vendor - 76 O.S.No.6231/2005 Smt.D.Anasuya has committed fraud on the court by showing wrong boundaries, manage to get decree in her favour. But in fact, the evidence both oral and documentary adduced before the court in the presence of the vendors of the plaintiffs, they also contested the matter. The court has held that Smt.D.Anasuya was in possession and she was the owner of 30 guntas which was purchased by her from Sri.Byrappa and her title was declared. Hon'ble High Court confirmed the said order and also passed orders directing the defendants who are encroachers to vacate and deliver the possession by executing the decree she obtained vacant possession stands proved. Therefore, the present defendants 4 to 6 are in actual, lawful possession and enjoyment of the counter claim schedule properties. The very contention taken by the plaintiffs making allegations against the defendants amounts to interference in their lawful possession, certainly they are entitled to get the relief of permanent injunction to protect their lawful possession. I.A.No.1 filed by the plaintiffs along with plaint under Order XXXIX Rules 1 and 2 of CPC was dismissed holding that the plaintiffs have failed to prove their prima facie possession, 77 O.S.No.6231/2005 which was confirmed by the Hon'ble High Court. Therefore, it is needless to say that the defendants 4 to 6 have successfully and succinctly proved that they are entitled to get the relief permanent injunction in respect of counter claim schedule - A, B and C properties. Accordingly, I answer Issue No.8 in the affirmative.
42. Issue No.9:-
For the forgoing reasons, the plaintiffs are not at all entitled to get any of the reliefs claimed in the suit and the suit filed by them against the defendants is liable to be dismissed. Hence, I proceed to pass the following:-
ORDER Suit filed by the plaintiffs against the defendants is hereby dismissed with costs.
The counter claim raised by the defendants 4 to 6 is hereby allowed.
The plaintiffs, their henchmen, agents, assignees or anybody claiming through them, are hereby restrained from interfering with the peaceful possession and enjoyment of 78 O.S.No.6231/2005 the counter claim schedule - A, B and C properties by the defendants 4 to 6 by way of permanent injunction.
Draw a decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 7th day of January 2017) (BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiffs' side:
PW.1 - Sri.K.Mogilappa PW.2 - Sri.K.Varadaraju
(b) Defendants' side:
DW.1 - Sri.B.K.Lokesh DW.2 - Sri.Andanappa II. List of documents exhibited on behalf of:
(a) Plaintiffs' side:
Ex.P1 : Original Registered Sale Deed
dated 19.02.1981
Ex.P2 : Original Registered Sale Deed
dated 19.02.1981
79 O.S.No.6231/2005
Ex.P3 : Original Agreement of Sale dated
22.04.1996
Ex.P4 : Original Declaration
Ex.P5 : Original Agreement of Sale dated
22.07.1996
Ex.P6 : Original Agreement of Sale dated
02.05.1996
Ex.P7 : Certified copy of the Plaint in
O.S.No.2048/1981
Ex.P8 : Certified copy of the Amended
Written Statement in
O.S.2048/1981
Ex.P9 : Certified copy of the Judgement
in O.S.No.2048/81
Ex.P10 : Certified copy of Appeal Memo in RFA.No.379/1999 Ex.P11 : Certified copy of the Judgement passed by the Hon'ble High Court in RFA.No.379/1999 Ex.P12 : Certified copy of the Decree in RFA.No.379/1999 Ex.P13 : Certified copy of the Plaint in O.S.No.1988/1999 Ex.P14 : Certified copy of the Order Sheet in O.S.No.1988/1999 Ex.P15 : Certified copy the Memo in O.S.No.1988/1999 Ex.P16 : Certified copy of the Memo Reporting EFS in Ex.2593/2002 Ex.P17 : Certified copy of cancelled GPA dated 21.05.1996 Ex.P18 : Certified copy of the cancelled Agreement of Sale dated 04.06.1988 Ex.P19 : Certified copy of cancelled Affidavit Ex.P20 : Certified copy of cancelled GPA dated 22.11.1986 Ex.P21 : Certified copy of cancelled Agreement of Sale dated 22.11.1986 Ex.P22 : Certified copy of cancelled 80 O.S.No.6231/2005 Affidavit Ex.P23 : Certified copy of cancelled Agreement of Sale dated 23.12.1987 Ex.P24 : Certified copy of cancelled GPA dated 23.12.1987 Ex.P25 : Certified copy of cancelled GPA dated 10.10.1991 Ex.P26 : Certified copy of cancelled Agreement of Sale dated 10.10.1991 Ex.P27 : Certified copy of cancelled Affidavit Ex.P28 : Certified copy of the Registered Sale Deed dated 12.12.1968 Ex.P29 : Sketch Ex.P30 : Certified copy of the Registered Sale Deed dated 02.03.1981 Ex.P31 : Certified copy of the Registered Sale Deed dated 02.03.1981 Ex.P32 : Certified copy of the Registered Sale Deed dated 16.03.1981 Ex.P33 : Certified copy of the Registered Sale Deed dated 16.03.1981 Ex.P34 : Certified copy of the Registered Sale Deed dated 16.03.1981 Ex.P35 : Certified copy of the Registered Sale Deed dated 02.03.1981 Ex.P36 : Certified copy of the Registered Sale Deed dated 02.03.1981 Ex.P37 : Certified copy of the Registered Sale Deed dated 16.03.1981 Ex.P38 : Certified copy of the Registered Sale Deed dated 02.03.1981 Ex.P39 : Certified copy of the Registered Sale Deed dated 02.03.1981 Ex.P40 : Certified copy of the Registered Sale Deed dated 03.03.1969 Ex.P41 : Original Registered GPA dated 22.04.1996 Ex.P42 : Original Registered GPA dated 02.05.1996 81 O.S.No.6231/2005 Ex.P43 : Original Registered GPA dated 22.07.1996 Ex.P44 : Encumbrance Certificate Ex.P45 : Record of Rights
(b) Defendants' side:
Ex.D1 : Certified copy of the Petition in Misc.No.671/2004 Ex.D2 : Certified copy of the Written Statement in O.S.No.2048/81 Ex.D3 : Certified copy of the Judgement in RFA.No.202/1999 Ex.D4 to D7 : Photographs Ex.D8 : Certified copy of the Sale Deed dated 14.05.1957 Ex.D9 : Certified copy of the Vakalath in RFA.No.379/1999 Ex.D10 : Certified copy of the Written Statement in O.S.No.1988/1999 Ex.D11 : Objections to I.A. in O.S.No.1988/1999 Ex.D12 : Certified copy of the Affidavit in R.P.No.238/2002 Ex.D13 : Certified copy of Sale deed dated 11.02.1933 Ex.D13(a) : Typed copy of Ex.D13 Ex.D14 : Certified copy of Sale deed dated 14.12.1942 Ex.D14(a) : Typed copy of Ex.D14 Ex.D15 : Certified copy of Sale deed dated 24.06.1946 Ex.D15(a) : Typed copy of Ex.D15 Ex.D16 : Certified copy of Sale deed dated 24.09.1948 Ex.D16(a) : Typed copy of Ex.D16 Ex.D17 : Certified copy of Sale deed dated 19.09.1949 82 O.S.No.6231/2005 Ex.D17(a) : Typed copy of Ex.D17 Ex.D18 : Certified copy of Sale deed dated 15.01.1957 Ex.D18(a) : Typed copy of Ex.D18 Ex.D19 : Certified copy of Sale deed dated 14.05.1957 Ex.D19(a) : Typed copy of Ex.D19 Ex.D20 : Certified copy of Sale deed dated 18.04.1964 Ex.D20(a) : Typed copy of Ex.D20 Ex.D21 : Certified copy of Sale deed dated 12.12.1968 Ex.D21(a) : Typed copy of Ex.D21 Ex.D22 : Certified copy of Sale deed dated 13.10.32 Ex.D22(a) : Typed copy of Ex.D22 Ex.D23 : Certified copy of Partition deed dated 15.10.1934 Ex.D23(a) : Typed copy of Ex.D23 Ex.D24 : Certified copy of Judgment in O.S.No.2048/81 Ex.D25 : Certified copy of Decree in O.S.No.2048/1981 Ex.D26 : Certified copy of Judgment in RFA No.202/1999 Ex.D27 : Certified copy of Order in C.P.No.1354/2002 in RFA.No.202/1999 Ex.D28 : Certified copy of Judgment in RFA No.379/1999 Ex.D29 : Certified copy of Order in Review Petiton.No.230/2002 Ex.D30 : Certified copy of IA in C.P.No.300/2002 in 83 O.S.No.6231/2005 RFA.No.202/1999 Ex.D31 : Certified copy of Village Map Ex.D32 : Certified copy of the Judgment in O.S.No.3652/1998 Ex.D33 : Certified copy of Decree in O.S.No.3652/98 Ex.D34 : Certified copy of Rough sketch Ex.D35 : Certified copy of Sale deed dated 03.02.2005 Ex.D36 : Encumbrance Certificate Ex.D37 : Assessment Register Extract Ex.D38 : Tax Paid Receipt Ex.D39 : Electricity Bill Ex.D40 : Certified copy of Sale deed dated 03.02.2005 Ex.D41 : Electricity Bill Ex.D42 : Certified copy of Sale deed dated 28.01.2005 Ex.D43 : 5 Electricity Bills 42nd ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.