Bangalore District Court
Jayaram Naik S/O. Shiva Naik vs Unknown on 22 April, 2017
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 22nd day of April 2017
-: Present :-
Smt. Hemavathi, BBM, LL.B,
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO. 9289/2007
Plaintiff:-
Jayaram Naik S/o. Shiva Naik, 31 years,
R/o.No.11, 6th 'B' Cross, Arehalli
G.S.Layout, Opp: Ganapathy Temple,
Bengaluru - 560 061.
[By Sri.T.Jayaprakash, Advocate]
/ Versus /
Defendants :-
1. Manjunath Naik S/o.Kitta Naik, 41
years, R/o.No.1, 6th b Cross Road,
Ittamadu Main Road, Arehalli,
Bengaluru-61.
2. K. Mukunda Naik S/o. Kitta Naik,
48 years, R/o.No.22/48, 1st Main
Road, V Phase, BSK III Stage,
Bengaluru-85.
(By Sri.N.S., Advocate)
: 01.12.2007
Date of Institution of the suit
Suit for declaration
Nature of suit : and permanent
injunction
Date of commencement of : 11.03.2009
evidence
Date on which the judgment : 22.04.2017
is pronounced
Years Months Days
Duration taken for disposal :
09 04 21
***
JUDGMENT
The plaintiff has initially filed the suit for the relief of permanent injunction against the defendants. During the pendency of the suit the plaintiff has also sought for the relief of declaration and possession by way of amendment. Now, the suit is for the relief of declaration to declare that plaintiff is the sole and absolute owner of the suit property by virtue of the Sale Deed dated 13.9.2000 and Sale Deed dated 8.3.2007 is not binding on the plaintiff and for the relief of possession to direct the defendants to handover the possession to the custody of the plaintiff and for relief of permanent injunction and such other reliefs, with costs.
2. The brief facts of the plaintiff's case are that he is the absolute owner in possession and enjoyment of the suit schedule property having purchased the same under registered Sale Deed dated 13.9.2000 and he put up the construction by availing financial assistance from City Financial Services and HDFC and he obtained electricity and water connection to the schedule property. He is paying the water and electricity consumption charges and he has let out the portion of the suit schedule property to one V.M.George. Defendants are total strangers to the suit property and they have no manner of right, title or interest over the suit property. In spite of that, they came near the suit property on 2.11.2007 along with their henchmen and roudy elements and tried to interfere with possession and enjoyment over the suit property on the grounds that it belongs to them. When the plaintiff resisted their high handed acts and questioned their illegal interference, the defendants gave evasive reply and left the spot threatening that they would come again and dispossess the plaintiff from the suit property. So, the plaintiff rushed to the jurisdictional police and requested them to take action, for which the police informed that matter is of civil nature. Hence, he filed this suit for permanent injunction.
3. During the pendency of the suit, the plaintiff got amended the plaint by inserting para 7(a) and (b) contending that second defendant has taken up a plea that he has purchased the suit property from the first defendant under registered Sale Deed dated 8.3.2007 where under the first defendant has executed sale deed based on the alleged power of attorney said to have been executed by this plaintiff in his favour. But, this plaintiff has not at all executed any power of attorney in favour of defendant No.1, alleged GPA dated 10.12.2000 is fabricated, forged and concocted and second defendant based on the alleged sale deed dated 8.3.2007 and colluding with the tenant seems to have created rental agreement to show as if he is in possession of the suit property. In view of these developments, it has become just and necessary for him to seek relief of declaration to declare that he is the absolute owner in possession of the schedule property and also declare that the Sale Deed dated 8.3.2007 is not binding on him. In para 7(b) he stated that Misc. Petition No.316/2010 was filed by him to restore this suit to the original file and to dispose of on merits and it was allowed and restored by its order dated 14.3.2012 and being aggrieved by the said order, defendants No.1 and 2 started nurturing ill-will against the plaintiff and during the last week of March 2013 when he had gone to his native place to see his one of close relatives who became seriously ill and at that time, the defendants taking advantages of the same, came near the suit property along with large number of goondas and forcibly took the vacant possession of the suit property by break open the lock and this fact was informed to him on 3.4.2013 by his neighbourer. Thereafter he came down to Bengaluru and approached the jurisdictional police requesting them to take action against the defendants. But, the police instead of taking action informed him to approach the civil Court stating that since the matter is pending before the Civil Court, it subjudice. Hence, he has been constrained to seek the relief of possession.
4. Defendant No.1 filed written statement, which has been adopted by defendant No.2. They contended that the suit is not maintainable either in law or on facts and is liable to be dismissed. Except the fact that the plaintiff had purchased the property under registered Sale Deed dated 13.9.2000, they have denied all other averments of the plaint. Further, contended that the plaintiff has entered into agreement of sale of suit property in favour of this defendant No.1 on 10.12.2000. he also received entire sale consideration amount of Rs.80,000/- on the very same day and by receiving the entire sale consideration amount, plaintiff also executed document in his favour and delivered vacant possession of the schedule property to him and in order to enjoy the suit property more effectively, the plaintiff has also sworn an affidavit and executed GPA in favour of defendant No.1 on 10.2.2012 and plaintiff has delivered all the original documents of title deeds to this defendant on 10.12.2000 and all the documents are in the custody of second defendant and after acquiring the right, title and interest over the schedule property in the aforesaid manner, this defendant No.1 has put up residential construction over the schedule property in the year 2004 and on 10.9.2004 defendant No.1 has leased the schedule property in favour of one V.Mathew and thereafter he sold the same in favour of second defendant on 8.3.2007 based on the GPA dated 10.12.2000 and thereafter second defendant has sought for transfer of khatha in his name and the tenant Sri.Mathew has also attorned the tenancy in favour of second defendant by rental agreement dated 26.11.2007 and this defendant No.1 had delivered all the original documents with respect to the suit property to the second defendant on the date of registration of sale deed. Further, contended that there is no cause of action for the suit. Either plaintiff or V.M.George are not in possession of the suit property and George Thomas is none other than the son of V.Mathew who is the tenant under the second defendant and V.Mathew and his son V.M.Goeroge Thomas are not in cordial relationship, taking advantages of the same, the plaintiff secured the documents in his favour. The plaintiff is either the absolute owner nor in possession of the suit property and second defendant is in peaceful possession and enjoyment of the same and even if the plaintiff had taken loan for construction of the building, it cannot be said that he is in possession of the same. Even though the plaintiff has received entire sale consideration amount and delivered the vacant possession, since there is no document registered in the name of defendant No.1 to secure any connection to the suit property, the water and electricity connection is secured in the name of plaintiff, but these documents cannot be construed with regard to possession and enjoyment of the suit property as on the date of suit. Hence, prayed to dismiss the suit filed by the plaintiff for the relief permanent injunction.
5. After amendment to the plaint, by inserting para 7(a) and (b), these defendants have filed additional written statement contending that the plaintiff was not at all in possession of the suit property and after commencement of evidence, the plaintiff got amended the plaint seeking the relief of declaration and possession, but the plaintiff has not sought for any relief with respect to the GPA dated 10.12.2000 in favour of first defendant. Hence, the plaintiff is not entitled for declaratory relief as prayer (a) and suit is not maintainable under Section 34(1) of Specific Relief Act for not seeking relief of possession and this defendant has filed written statement on 22.12.2007 and brought to the notice of the Court about the execution of the documents by the plaintiff, but the plaintiff did not dispute the said transaction and after lapse of six years, he sought for the relief of declaration by way of amendment and after lapse of 13 years, he has sought for delivery of possession. As such the reliefs claimed by the plaintiff by way of amendment are barred by limitation. The averments made in para 7 (a) and
(b) are all false. The court fee paid is insufficient. Suit is not properly valued. Hence, prayed to dismiss the relief claimed by way of amendment.
6. On the basis of the pleadings of the parties, following issues and additional issues have been framed by this Court :
ISSUES (1) Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of filing the suit?
(2) Whether the plaintiff proves that they defendants are interfering with their peaceful possession and enjoyment of the schedule property ?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as sought?
(4) What order or decree ?
Additional issues framed on 20.11.2009 (1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property ?
(2) Whether the plaintiff proves that the alleged affidavit, agreement, power of attorney dated 10.12.2000 executed by him in favour of the first defendant is fabricated and forged and concocted documents ?
(3) Whether the plaintiff proves that the alleged Sale Deed dated 8.3.2007 executed by the first defendant in favour of second defendant is not binding on him ?
(4) Whether the court fee paid by the plaintiff is insufficient ?
(5) Whether the plaintiff is entitled for the relief of declaration ?
Additional issues framed on 28.3.2014 (1) Does the plaintiff prove that the possession of defendant is not legal one as on the date of suit ?
(2) Whether suit of plaintiff barred by limitation ?
(3) Does the plaintiff prove he is entitle the relief of possession and perpetual injunction against the defendant ?
7. On perusal of the para 7(b) of the plaint it is seen that the plaintiff contended that during the pendency of the suit i.e., on last week of March 2013 in the absence of plaintiff in the suit property, the defendants break open the lock and forcibly took the vacant possession of the schedule property. But, Additional issue No.1 framed on 28.3.2014 is not par with this averments. Therefore, I have deleted this Additional Issue No.1 and recasted as under :
Whether the plaintiff proves that in the last week of March 2013 in the absence of plaintiff, the defendant forcibly took the possession of the suit schedule property ?
8. As the parties have already adduced evidence, there is no necessity to give an opportunity the them to lead evidence on this issue. Hence, I proceeded or disposal on merit.
9. Plaintiff examined him as P.W.1 and got marked 12 documents as per Exs.P.1 to P.12 and also marked one document as Ex.P.13 during the course of cross-examination of D.W.2 and Ex.P.14 in the course of cross-examination of D.W.3. The Defendants examined first defendant as D.W.1 and also examined second defendant as D.W.2 and got marked 13 documents as per Exs.D.1 to D.13 and one Bhavani.M.Naik as D.W.3. In the course of cross- examination of D.W.1, Exs.C.1 to 5 are marked.
10. Heard both sides and also filed written arguments with citations.
11. My findings on the above issues are as follows:
Issue No.1 and 2: Do not survive for
consideration in view of
declaration & possession
claimed by the plaintiff.
Issue No.3 : In the negative.
Additional Issues framed on 20.11.2009:-
Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
Issue No.4 : In the Affirmative.
Issue No.5 : In the Affirmative.
Additional Issues framed on 28.3.2014 :
Issue No.1 dt. 28.3.2014 -
deleted and Recasted
on 22.4.17 : In the Affirmative.
Issue No.2 : In the negative.
Issue No.3 : Partly in the affirmative.
Issue No.4
Dt.22.7.08 : As per final order, for
the following:
REASONS
12. Additional Issue No.2 :- Herein, the fact that plaintiff has purchased the suit schedule property under registered Sale Deed dated 13.9.1990 is an admitted fact. The case of the plaintiff that he availed the financial assistance initially from City Financial Services and subsequently from HDFC for construction on the schedule property and thereafter he had taken up the construction and obtained water and electricity connection in his name to the suit property and paying consumption charges. The defendants have no manner of right, title or interest over the suit property. In spite of that, on 2.11.2007 they came near the suit property along with their henchmen and roudy elements and tried to interfere with his possession over the suit property and they threatened him that they would come in one or two days and dispossess him from the suit property and the defendant No.2 has taken up a plea that he has purchased the suit property from the first defendant under Sale Deed dated 8.3.2007 contending that the first defendant had executed said sale deed based on the alleged power of attorney dated 1012.2000 said to have been executed by this plaintiff in his favour, but he has not executed any document and alleged power of attorney is fabricated, forged document.
13. Per contra, the defendants have contended that the plaintiff has entered into a sale agreement on 10.12.2000 and he received entire sale consideration amount of Rs.80,000/- as early as on 10.12.2000. Thereafter, he also executed GPA in favour of first defendant on 10.12.2000 and also delivered the vacant possession of the schedule property and in order to enjoy the property more effectively by this defendant No.1 the plaintiff has sworn an affidavit and he has also handed over all the original documents of title deeds to this defendant and based on the said power of attorney, he had put up a residential building over the schedule property in the year 2004 and leased out the same in favour of one V.Mathew and thereafter he sold the same in favour of second defendant in view of the power conferred under the GPA.
14. In the course of cross-examination P.W.1 denied that he sold the property in favour of the first defendant on 10.12.2000. Admittedly, in the course of cross-examination of P.W.1 or in the evidence of the defendants, the alleged original power of attorney dated 10.12.2000 or affidavit or alleged sale agreement dated 10.12.2000 said to have been executed by plaintiff in favour of defendant No.1 has not been produced. But, along with the written statement they have produced the Xerox copy of those documents. Even there is no suggestion to P.W.1 about the execution of alleged GPA or affidavit or sale agreement on 10.12.2000. Though in the written statement nowhere stated that the originals of alleged documents are with the plaintiff. D.W.1 in para 9 of the his chief affidavit stated that the original GPA is with the plaintiff and handed over Xerox copy to this defendant No.1. In the course of cross-examination he identified the Xerox copy of alleged documents produced along with the objection to the application filed under Order 39 Rule 1 and 2 C.P.C. as per List dated 18.12.2007 and these documents are marked as Exs.C.1 to C.5 (as these are the Xerox copies and shown in the course of cross- examination of D.W.1). Ex.C.1 is the Xerox copy of alleged Sale Agreement dated 10.12.2000. Ex.C.2 is the Xerox copy of the alleged affidavit dated 10.12.2000. Ex.C.3 is the alleged GPA dated 10.12.2000 said to have been executed by plaintiff in favour of defendant No.1 in respect of the suit schedule property. Though for the first time in the chief- examination of D.W.1 it is stated that original of these documents are with the plaintiff, the defendant has not made any attempt to get the original of these documents for the reasons best known to the defendants. But, D.W.2 in his cross-examination deposed that first defendant handed over affidavit, GPA and sale agreement said to have been executed by plaintiff in his favour to him in the year 2007 and he has produced these three original document before the Court. Even D.W.1 in his cross-examination at page 10 dated 5.1.2016 deposed that original of Ex.C.1 to 5 are in custody of his brother. This falsifies that the original of Ex.C.1 to 3 were retained by the plaintiff. In spite of that the defendants have not produced the original of Ex.C.1 to 3. It is not explained why they have not produced. It is well settle that if the material documents are withheld by the parties without any reason, it can be presumed that the said documents are against the defendants. The learned advocate for plaintiff relied upon decision reported in :
(1) AIR 1981 Supreme Court 977 -
Thusharlbhai Mahijibhai Patel Vs. A firm of Mohamadhussain Rahimbux : Head Note B. (2) AIR 1953 Supreme Court 225 - Heralal and others Vs. Badkulal and others. - Head note B (3) AIR 1988 Delhi 332 - Smt.Niranjan Kaur Vs. M/s. New Delhi Hotel Ltd., and others -
Head Note A.
15. So, when the defendants have withhold the material documents without any reason and they have taken different contention with respect to the custody of these documents, itself is sufficient to draw adverse inference against the defendants about their contention with respect to the execution of Exs.C.1 to 3 by the plaintiff in favour of defendant No.1. On the other hand, it can be presumed that and it also proves that it is a created document. For that reason, they have withhold these material documents.
16. D.W.1 in his cross-examination deposed that after notary, the plaintiff did not hand over the original of Ex.C.1 to him. He does not know who is in custody of original of Ex.C.1. It may be with him and he has signed before Notary at Hanumanthanagar, plaintiff got typed Ex.C.1 and obtained the signature of Bhavani who is his wife in his home. When they signed Ex.C.1 to 3, except himself and plaintiff, nobody were present.
17. D.W.3 who is the witness to Ex.C.1 in her chief- examination at para 6 deposed that on 10.12.2000 in the morning at abut 10.30 a.m. Jayaram Naik brought the typed papers and shown the same to her husband, one Thimmaiah and also to her and they have read the said agreement, affidavit and GPA and thereafter, witness have signed the affidavit and agreement as a witness and thereafter Jayaram Naik told her husband to accompany him to the notary office and sign before the notary. In the course of cross- examination she deposed that her marriage took place on 6.5.2001, till marriage she was residing with her parents, thereafter she is residing with her husband and prior to marriage, she has not signed any documents which are produced in this case.
18. Exs.C.1 to 3 are dated 10.12.2000. But, as per Ex.P.14 and as admitted by D.W.3 her marriage with D.W.1/defendant No.1 took place on 6.5.2001. If the aforesaid evidence of D.W.3 is taken into consideration, it is very clear that she has not signed any document on 10.12.2000.
19. Another witness to the Ex.C.1 is one Thimmaiah who is the brother of D.W.3. D.W.3 deposed that Thimmaiah signed Ex.C.1 in her house at Bengaluru. When the marriage of D.W.3 took place in the year 2001, how this witness can sign this document in the year 2000 in the house of defendant No.1 in Bengaluru. So, it proves that it is a created document.
20. It is the arguments of the learned advocate for defendant that Ex.C.1 to 3 were got marked by the plaintiff in the course of cross-examination of D.W.1. So, it is clear that the plaintiff has admitted these documents. Therefore, the burden lies on him to disprove these documents. But, the plaintiff has not made any such attempt. So, adverse inference is to be drawn against the plaintiff about due execution of these documents.
21. Ofcourse, Ex.C.1 to 3 were marked in the course of cross-examination of D.W.1 by the learned advocate for plaintiff. But, the plaintiff nowhere admitted these documents as the documents executed by him. On the other hand, it is shown to the witness stating that these are the documents produced by them along with the list dated 18.12.2007 filed before this Court. As they are the Xerox copies and produced by the plaintiff, the same cannot be marked as 'D' series and also by marking those documents as 'P' series, no evidentiary value can be given on this document. Hence, for reference purpose the Court has marked these documents as 'C' series. When the defendants in the written statement contended that the plaintiff had executed GPA dated 10.12.2000 and also Affidavit and Sale agreement on the very same day, it is the defendants who have to prove these documents. The defendants withholding original of Ex.C.1 to 3 cannot shift the burden on the plaintiff to prove Ex.C.1 to 3. Hence, the arguments of learned advocate for defendants does not hold good.
22. Further, there is a recital in Ex.D.3 at page 3, para 3, 7th line, which reads thus :
" F PÀæAiÀÄzÀ ±ÉqÀÆå¯ï ¸ÀévÀÛ£ÀÄß EzÀĪÀgÉUÉ dAiÀÄgÁªÀÄ £ÁAiÀÄPÀgÁUÀ°Ã CªÀjAzÀ f¦AiÉÄ ¥ÀvÀæzÀ ªÀÄÆ®PÀ C¢ÀsPÁgÀ ¥ÀqÉ¢gÀĪÀ ªÀÄAdÄ£ÁxÀ£ÁAiÀÄPÀ£ÁzÀ £Á£ÁUÀ°Ã PÀæAiÀÄ, DzsÁgÀ ¨sÉÆÃUÀå, zÁ£Á¢ AiÀÄÁªÀ «zÀsªÁzÀ ¥ÀgÀ¨sÁgÀÉUÀ½UÀÆ M¼À¥Àr¹gÀĪÀÅ¢®èªÉAzÀÄ ....."
23. This recital is also sufficient to draw adverse inference about the contention of the defendant that the plaintiff executed sale agreement in favour of the defendant No.1. In view of these discussions, I hold that the plaintiff has proved that alleged Ex.C.1 to 3 are created documents. Hence, I answer this issue in the affirmative.
24. Additional Issues No.2 and 3 framed on 20.11.2009 : - The contention of the defendants that the plaintiff executed GPA in favour of the defendant No.1 and also sworn an affidavit and also executed a sale agreement in favour of the defendant No.1 on 10.12.2000 agreeing to sell the suit property and based on the said power of attorney, the defendant No.1 having acquired the right, title and interest over the property has sold the property in favour of defendant No.2 on 28.3.2007.
25. When the defendants have failed to prove the execution of Ex.C.1 to 3, the sale deed executed by the defendant No.1 without authority. Hence, it is void document. Therefore, defendant No.2 does not acquire any right or title over the property. As the plaintiff is the owner of the property having purchased the same under Sale Deed dated 13.9.2000 and the defendants have failed to prove the execution of alleged GPA, sale agreement or affidavit in favour of defendant No.1 by the plaintiff the ownership of the plaintiff over the suit property remained with him. Therefore, I hold that the plaintiff proved that he is the absolute owner of the property.
26. Further, in the written statement nowhere the defendants have contended that the plaintiff had sold suit property for sale consideration amount of Rs. 80,000/- and he received the same as early as on 10.12.2000. But, this is falsified by the deposition of D.W.1, in the course of cross- examination that they have invested Rs.80,000/- towards shop run by the plaintiff and that is the amount shown in Ex.C.1 and in the year 1997-98 they have invested to the shop and STD booth run by the plaintiff.
27. He further deposed that second defendant purchased the property for Rs.8,12,000/-. Further, at page 13 of his deposition, deposed that defendant No.2 paid the said amount by cash to him and out of that he paid Rs.3 to 4 Lakhs to the plaintiff on the date of sale deed and at page 16 of his deposition, he deposed that he has not paid any amount to the plaintiff. But, defendant No.2 paid the amount to the plaintiff and he had not seen how much amount was paid to the plaintiff by his brother.
28. D.W.2 in his cross-examination at page 11 deposed that out of sale consideration amount he paid Rs. 4 Lakhs in cash, 2 months earlier to the registration of the sale deed and balance amount of Rs.4,12,000/- at the time of registration of the sale deed and he has not paid any amount directly to the plaintiff towards sale consideration amount.
29. These contradictory evidence are sufficient to say that no amount was paid to the plaintiff on the date of sale deed executed by defendant No.1 in favour of defendant No.2 based on the alleged, created power of attorney as per Ex.C.3.
30. The learned advocate for plaintiff relied upon the decision reported in 2009 AIR SCW 2711 - Kaliya Perumal Vs. Rajgopal and another - Para 8.
31. Further, D.W.1 and 2 deposed that as on the date of registration of the sale deed the plaintiff also accompanied them to the office of the Sub-Registrar and when it was registered he was present in the office of the Sub-Registrar, but when they asked him to sign the sale deed, he did not sign stating that he had executed power of attorney.
32. If really the plaintiff was present on the date of sale deed as per Ex.D.3 in favour of defendant No.2 by defendant No.1, the defendants would have stated the same in the written statement, but there is no whisper in the written statement. Further, there is no cross-examination to P.W.1 on this point. So, the aforesaid evidence of defendants No.1 and 2 is not trustworthy.
33. Ex.C.4 which was produced by the defendants along with the list dated 18.12.2007 is the copy of the sale deed dated 8.3.2007 executed by defendant No.1 as a power of attorney holder of plaintiff in favour of defendant No.2. Ex.P.11 and 13 are the certified copies of said sale deeds. Ex.D.3 is the original sale deed dated 8.3.2007. In Ex.D.3 and Ex.C.4 at page 2, it is found that one para has been strucked out, but that is not found in Exs.P.11 and 13. Though in the course of cross-examination these material alterations have been admitted by the defendants, they have not given proper explanation when and how these alterations were made. Even to disprove the material alterations as per found in Exs.P.11 and 13, the defendants have not made attempt to summon the documents from the Office of Sub- Registrar or to examine the Sub-Registrar on this aspect. So, it is very clear that these material alterations were done after registration of sale deed as per Ex.D.3 on 8.3.2007. The learned advocate for plaintiff relied upon the decision reported in ILR 2014 Kar 233 - Padmini Raghavan Vs. H.A.Sonnappa - Head Note A - para 36.
34. The defendant No.1 in the written statement contended that based on the GPA, Ex.C.3 he executed sale deed in favour of the defendant No.2. The learned advocate for plaintiff argued that, no immoveable property can be transferred under sale agreement or GPA and it can be made validly by registered document. The learned advocate also relied upon the decision reported in AIR 2012 Supreme Court 206 - Suraj Lamp and Industries Pvt. Ltd., Vs. State of Hariyana and others.
35. Even if it is assumed that there is a GPA or sale agreement, that does not give any right, title or interest in favour of defendant No.1. When such being the fact, the defendant No.1 has no right over the property.
36. In view of these discussions, I answer these Additional Issues in the affirmative.
37. Recasted Additional Issue No.1 framed on 22.4.2017 :- Initially the plaintiff has filed suit for permanent injunction stating that he is in possession of the suit schedule property. Subsequently he got amended the plaint seeking relief of possession. According to the plaintiff during the last week of 2013, when he was out of station, the defendants taking advantages of the same, break open the lock and forcibly took the vacant possession of the schedule property. Ofcourse, he has stated that after coming to know about the same, he rushed to the Police Station, the police have not taken any action on the ground that the matter is subsidized as already this suit is pending. But, he has not produced any document for having approached the police. Plaintiff has produced Ex.P.1 - water bill, Exs.P.2 and 3 Electricity Bills for the period 2006-07, which are in the name of plaintiff.
38. It is further case of the defendants that after execution of the alleged power of attorney, affidavit and sale agreement by the plaintiff, this defendant No.1 having acquired the right, title and interest over the schedule property has put up the residential building in the year 2004. In the course of cross-examination D.W.1 deposed that he has not obtained sanctioned plan and licence to construct the house and he completed the construction of house in the year 2004, it consists of ground floor and one room in the first floor and when he executed a sale deed on 8.3.2007 there was 2 Sq.Ft. RCC roofed house and subsequently they have constructed the 7 Sq.Ft. building with sheet roof. He again says that they were issued permission to put up construction by gram panchayath in the year 2004, he can produce the said document. But, D.W.2 in his cross- examination deposed that when he purchased the property there was 9 Sq.Ft. building consisting of ground and first floor. When he purchased the property, building was under
construction. But, they have not produced any document for having obtained licence or permission to put up construction.
On the other hand, D.W. 2 admitted that when the construction was going on, building plan and licence were in the name of plaintiff. Further, D.W.1 and 2 admitted that till today the water and electricity connection are also in the name of plaintiff. If really the first defendant had constructed the building on the suit property out of his own money, he would have produced proof, but he has not produced any document or any corroborative evidence to prove that he had taken up construction on the suit property.
39. The plaintiff in his cross-examination deposed that he had constructed ground floor in the year 2001. The plaintiff has produced Ex.P.6 which is the electricity connection sanction letter dated 25.11.2000. So, the probabilities are more to accept the case of the plaintiff than the defendant with respect to construction over the suit property.
40. The defendants have produced the original Sale Deed dated 15.9.1999 belonging to the vendor of the plaintiff and also Ex.D.2 - sale deed of the plaintiff and also produced Exs.D.4 and D.5, which are Demand Register Extract for the period 2006-07 in the name of defendant No.2 and Ex.D.6 is the tax paid receipt issued by Bangalore Zilla Panchayath for the period 2006-07 and Ex.D.7 to Ex.D.10 - are the tax paid receipts issued by BBMP. Ex.D.11 - B Property Register Extract. But, the defendants have not produced any documents to show that they are residing in the suit property. Ex.D.4 to 11 do not reveal that the defendants are residing there. The revenue documents produced by the defendants cannot be a proof of title or possession, it is only a proof of payment of tax and tax assessed by the concerned authority.
41. It is the arguments of learned advocate for plaintiff that the recital in Ex.D.3 alleged sale deed executed by defendant No.1 on the basis of alleged GPA in favour of defendant No.2 itself is sufficient to say that the possession was not delivered to the second defendant. The learned advocate for plaintiff the recital in Ex.D.3 in page 2 para 2 line 7, which reads as under :
"¸ÀzÀj ¸ÀéwÛUÉ CªÀgÉà ¥ÀÇtð ªÀiÁ°ÃPÀgÀÄ ºÁUÀÆ ºÀPÀÄÌzÁgÀgÁV CªÀgÀ ¸ÀéAiÀiÁfðvÀªÁzÀ C£ÀĨÀs«¹PÉÆAqÀÄ §A¢gÀÄvÁÛg.É ¸ÀzÀj ¸ÀéwÛ£À ªÀåªÀºÁgÀUÀ¼À£ÀÄß RÄzÀÄÝ ¤AvÀÄ ¤UÁªÀuÉ ElÄÖ PÁAiÀÄðPÀ¯Á¥ÀU¼À £À ÀÄß £Àqɸ® À Ä ¸ÁzÀså«®è¢gÀĪÀÅzÀjAzÀ ¸ÀzÀj ¸ÀéwÛ£À J¯Áè «zÀsªÁzÀ PÁAiÀÄð PÀ¯Á¥ÀU¼À À£ÀÄß £Àqɸ® À Ä ªÀÄvÀÄÛ ªÀiÁgÁl ªÀUÉÊgÉUÀ¼À£ÀÄß ªÀiÁqÀ®Ä ¸ÁzÀsªÁUÀzÀ ¥ÀæAiÀÄÄPÀÛ dAiÀÄgÁªÀÄ £ÁAiÀÄPÀgÀªÀgÀÄ ªÀÄAdÄ£ÁxÀ £ÁAiÀÄPÀ£ÁzÀ £À£ÀUÉ ¢.10.11.12 gÀAzÀÄ ¨ÉAUÀ¼ÀÆgÀĹn ªÉÄmÉÆæ¥Á°l£' ©.UÉÆÃ¥Á®PÀȵÀÚgÀªÀgÀ JzÀÄj£À°è §gɹPÉÆnÖgÀĪÀ f ¦ J ¥ÀvÀæzÀ ªÀÄÆ®PÀ £À£ÀߣÀÄß f ¦ J ºÉÆîØgï DV £É«Ä¹PÉÆArgÀÄvÁÛgÉ."
42. The learned advocate also relies upon the recital at page 3, para 1, which reads thus :
"F PÀæAiÀÄ ¥ÀvÀæªÀ£ÀÄß ¤ªÀÄä ºÉ¸ÀjUÉ jf¸Ögï ªÀiÁr¹PÉÆnÖgÀĪÀ ªÀÄÆ®PÀ ±ÉqÀÆå®'£À°è «ªÀj¹gÀĪÀ ¸ÉÊlÄ ªÀÄvÀÄÛ ªÁ¸ÀzÀ ªÀÄ£ÉAiÀÄ£ÀÄß dAiÀÄgÁªÀÄ£ÁAiÀÄPÀgÀ ¥ÀgÀªÁV F ¢£ÀªÉà ©lÄÖPÉÆnÖgÀÄvÉÛãÉ."
43. On going through the aforesaid recital, it can be said that under the alleged GPA possession was not delivered to the first defendant. When such being the fact, the first defendant cannot deliver the physical possession of the suit property.
44. On the basis of these evidence produced by the plaintiff though it is not possible to come to a fair conclusion when the defendants came into possession of the suit property. The plaintiff produced Ex.P.1 - water bill, Ex.P.2 and 3 - Electricity Bill, Ex.P.5 - Electricity Sanction Letter dated 15.9.2004, Ex.P.6 - Copy of Letter dated 26.11.2000 about sanction of electricity connection, Ex.P.7 - Statement of Water Charges issues by BWSSB for the period from 2012 to 2014, Ex.P.10 - Rent Agreement dated 29.10.2007. it is the arguments of the learned advocate for defendants that if the plaintiff is in possession of the suit property, he would have produced the water bill or Electricity Bill as on the date of suit and till the date of alleged dispossession. But, he has not produced any documents. So, it disproves that the plaintiff is in possession of the suit property.
45. Ofcourse, the plaintiff has not produced upto date water and electricity charge bills. But, the defendants who contend that they are in possession of the property since 10.12.2000, the date of alleged GPA, sale agreement and affidavit have also not produced either electricity or water charges. The documents produced by the defendants are the revenue documents with respect to payment of tax and Demand Register Extract cannot confer physical possession of the suit property as on the date of suit. Therefore, on perusal of the oral as well as documentary evidence produced by both the parties, this Court comes to conclusion that the probabilities are more to accept the case of the plaintiff that during the pendency of the suit, the defendants dispossessed him from the schedule property. Hence, I answer this issue in the affirmative.
46. Additional Issue No.1 dated 28.3.2014 : - It is the contention of the defendants that the suit is barred by limitation. It is the arguments of learned advocate for defendants that the plaintiff has filed a suit for permanent injunction in the year 2007 and the defendants in their written statement filed on 22.12.2007 denied the right of the plaintiff over the suit schedule property. So, he ought to have claimed the relief of declaration within three years and the plaintiff sought for possession in the year 2013. So, as per the Articles 58 and 59 of the Limitation Act, the suit of the plaintiff is barred by time.
47. No doubt, the defendants filed written statement on 22.12.2007 and they have denied the title of the plaintiff over the suit property. The plaintiff filed an application on 3.6.2009 for amendment of plaint by inserting para 7(a) and also seeking the relief of declaration. Said application was allowed by this Court on 18.8.2009, which is within the period of 3 years. Article 58 of Limitation Act says that the period of limitation to obtain any other relief of declaration is 3 years when the right to sue accrues. When the plaintiff has filed an application for amendment seeking the relief of declaration is within the period of three years, this relief of declaration is not barred by limitation. Further, the plaintiff filed an application under Order VI Rule 17 C.P.C. on 17.4.2013 seeking possession of the suit schedule property, which within the period of 7 years from the date of filing written statement. AS per Article 64 of the Limitation Act, the period of limitation is 12 years to file a suit for possession from the date of dispossession. So, the relief of possession is also not barred by limitation. Hence, I answer this issue in the negative.
48. Additional issue No.4 dated 20.11.2009 : -
The plaintiff initially sought for the relief of permanent injunction. Subsequently, got amended the plaint and claimed relief of declaration and possession. On perusal of the Order Sheet it is seen that soon after the amendment of plaint claiming these reliefs, the plaintiff has not paid court fee. But, subsequently he paid of court fee of Rs.20,375/- on 22.8.2014 and after calculating the court fee as per the directions of this Court dated 22.8.2014 Office has raised objection that the plaintiff shall pay balance court fee of Rs.47,450/- it was paid by the plaintiff on 19.12.2014. The defendants have not raised any objections on this point.
Hence, I hold that the court fee paid by the plaintiff for the relief claimed in the suit is proper and correct. Hence, I answer this issue in the negative.
49. Issue No.3, Additional Issue No.5 dated 20.11.2009 and Additional Issue No.3 dated 28.3.2014 : - When the plaintiff has proved that he is the absolute owner of the property and the defendants have failed to prove the execution of alleged GPA, affidavit and sale agreement dated 10.12.2000, the sale deed as per Ex.d.3 by defendant No.1 in favour of defendant No.2 dated 8.3.2007 is not binding on the plaintiff and the plaintiff also proved that he was dispossessed by the defendants during the pendency of the suit, plaintiff is entitled for the relief of declaration of ownership and possession over the suit property.
50. It is the argument of the learned advocate for defendants that there is no cause of action for the suit and in the plaint, para-7 it is stated that on 2.11.2007 the defendants along with their henchmen came near the suit property and tried to interfere with his possession, but, in para 8 it is stated that the cause of action for the suit arose on 30.11.2007 and in the chief affidavit he stated that on 31.10.2007 the defendants came near the suit property and though the plaintiff has sought for the relief of declaration and possession, in the plaint, there is no averments anything about the cause of action arose to claim these reliefs and the cause of action for the relief of permanent injunction cannot be continued cause of action to claim the relief of declaration and possession. Hence, suit is liable to be dismissed.
51. It is true that, as rightly argued by the learned advocate for defendant, the plaintiff has given different dates of cause of action with respect to the relief of permanent injunction, but all the dates of cause of action stated by the plaintiff are prior to the presentation of the plaint i.e., on 1.12.2007. When the plaintiff has proved his case, I hold that merely because he has stated different date the cause of action, the plaintiff cannot be non-suited. Further, ofcourse, after claiming relief of declaration and possession, there is no amendment with respect to the cause of action arose to claim this relief. But, by inserting para 7(a) and (b), the plaintiff has clearly stated that the defendants in the written statement contended that second defendant has purchased the suit property from first defendant under registered Sale Deed dated 8.3.2007 based on the alleged power of attorney dated 10.12.2000 which is the fabricated document and also contended that during his absence in the last week of March 2013, the defendants by break open the lock have dispossessed him from the suit property. So, he has clearly disclosed the cause of action to claim the relief of declaration and possession. Hence, the arguments of the learned advocate for defendants that there is no cause of action cannot be accepted.
52. It is further arguments of learned advocate for defendants that the plaintiff has not sought for cancellation of the sale deed, but he has sought for only declaration to declare that the sale deed dated 8.3.2007 is not binding on him and even he has not sought for cancellation of GPA dated 10.3.2000. Hence, under Section 34 of the Specific Relief Act, he is not entitled for the relief and even the Court cannot grant any such relief without seeking such relief.
53. The learned advocate for defendants relied upon decisions reported in :
1) 2011 (1) AIR KAR 63 - B.Bommegowda and another Vs,. Ramalingegowda and another.
2) 2011 (2) AIR KAR 453 - K.Raju Vs. B.D.A.
54. Section 34 of the Specific Relief Act says that :
"34. Discretion of Court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
55. Herein, the plaintiff has not only sought for declaration of his title, but he has also sought for declaration to declare that the Sale Deed dated 8.3.2007 is not binding on him. When the plaintiff has proved that the alleged power of attorney dated 10.12.2000 is fabricated document and defendant No.1 had no authority or power to execute sale deed as per Ex.D.3, the said document itself is void. When such being the fact, it does not create any right, title or interest in favour of defendant No.2. It is well settled that, if the party to the suit is not a party to the document under challenge, such party cannot seek for cancellation of documents.
56. The learned advocate for plaintiff relied upon the decision reported in AIR 2016 Chattisgarh 195 - Tarun Babulal Chandrakanth Vs. Smt. Kumari Bai Devilal Kunni and others.
57. Herein, the plaintiff has not directly executed the sale deed, but defendant No.2 is claiming right on the basis of sale deed executed by defendant No.1 as an alleged GPA holder of plaintiff. Nowhere in the plaint the plaintiff admitted that he has executed power of attorney. When such being the fact, that merely because the defendant No.1 executed a sale deed as alleged power of attorney holder of plaintiff, the plaintiff need not seek for cancellation of the sale deed. In view of these discussions, I hold that the plaintiff is entitled for the relief of declaration and possession as prayed for.
58. The plaintiff has sought for permanent injunction to restrain the defendant from interfering with the possession over the suit property. Ofcourse, the suit was filed for permanent injunction initially based on the possession. But, now the plaintiff has sought for possession. When such being the fact, the question of granting permanent injunction to restrain the defendant from interfering with the possession of the property which is not in possession of the plaintiff does not arise. Therefore, I hold that the plaintiff is not entitled for the relief of permanent injunction. Hence, I answer Issue No.3 in the negative, Additional Issue No.5 dated 20.11.2009 in the affirmative and Additional Issue No.3 dated 28.4.2014 partly in the affirmative.
59. Issue No.4:- In view of the above discussions, I proceed to pass the following:
ORDER Suit filed by the plaintiff against the defendants is hereby partly decreed with costs.
It is hereby declared that the plaintiff is the absolute owner of the suit schedule property.
It is also declared that the Sale Deed dated 8.3.2007 is not binding on the plaintiff.
The defendants are directed to hand over the vacant possession of the suit schedule property to the plaintiff within 3 months from the date of this order.
The relief of permanent injunction
claimed by the plaintiff is hereby
rejected.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, script corrected, signed and then pronounced by me in the open court, this the 22nd day of April, 2017.) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Jayaram Naik
2. List of documents exhibited for plaintiff:
Ex.P.1 : Water bill.
Exs.P.2 & 3 : Electricity Bills.
Ex.P.4 : Letter dated 7.3.2015 by BESCOM.
Ex.P.5 : Electricity Sanction Letter dated
15.9.2004.
Ex.P.6 : Copy of the Letter dated 25.11.2000
about Sanction of Electricity
Connection.
Ex.P.7 : Statement of Water Charges issued by
BWSSB.
Ex.P.8 : Encumbrance Certificate.
Ex.P.10 : Rent Agreement dated 29.10.2007.
Ex.P.11 : Copy of Sale Deed dated 8.3.2007
Ex.P.12 : C/c of Sale Deed dated 13.9.2000
Ex.P.11(a) : struck out portion.
Ex.P.13 : C/c of Sale Deed dated 8.3.2007
Ex.P.13(a) : Portion marked.
Ex.P.14 : C/c of Marriage Certificate.
Ex.P.14(a) : Signature of D.W.3.
3. List of witnesses examined for defendants:
D.W.1 : Manjunath Naik
D.W.2 : K.Mukunda Naik
D.W.3 : Bhavani M.Naik.
4. List of documents exhibited for defendants:
Ex.D.1 : Sale Deed dated 15.9.1999 Ex.D.2 : Sale Deed dated 13.9.2000 Ex.D.3 : Sale Deed dated 8.3.2007 Ex.D.4 & 5 : Demand Register Extracts Ex.D.6 : Tax paid receipt dated 26.3.07 Ex.D.7 to 9 : tax paid receipts Ex.D.10 : Challan for payment of property tax. Ex.D.11 : Property Register Extract Ex.D.12 & 13 : Encumbrance Certificates
Documents marked during the course of cross- examination of D.W.1 by plaintiff :
Ex.C.1 : X/c of sale agreement dated 10.12.2000 Ex.C.2 : X/c of Affidavit.
Ex.C.,3 : X/c of GPA Ex.C.4 : X/c of Sale deed dated 8.3.2007. Ex.C.5 : Xerox copy of Rent Agreement.
Ex.C.1(a) & (b) : Signature of plaintiff and defendant No.1 Ex.C.4(a) : marked portion.
Ex.C.1(c)&2(a) : Signatures of D.W.3.
(Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***