Bangalore District Court
Sri Venkataswamy vs Smt C.S.Sharada on 31 March, 2021
1
O.S.NO.156/2010
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 31st day of March, 2021.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.156/2010
Plaintiffs: Sri Venkataswamy
since dead his LR's
1(a) Smt. Sharadamma
aged about 63 years,
w/o late Venkataswamy,
residing at B.Chennasandra village,
Kalyananagar post,
Bangalore.
1(b) Sri Nataraj
Aged about 43 years,
s/o late N.Venkataswamy,
residing at B.Chennasandra village,
Kalayana nagar post,
Bangalore.
1(c) Smt Shyla
Aged about 47 years,
D/o N.Venkataswamy,
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O.S.NO.156/2010
Residing at H.Mettur village,
Bethamangala hobli,
Bangarapet taluk,
Kolar district.
1(d) Smt Geetha
Aged about 41 years,
D/o late N.Venkataswamy,
Residing at Harahalli,
Nelavaagilu post, Nandagudi hobli,
Hoskote taluk,
Bangalore rural taluk.
1(e) Smt Reshma
Aged about 39 years,
D/o late N.Venkataswamy,
Residing at No.24, Sangollirayanna road,
Bhuvaneshnagar,
T.Dasarahalli,
Bangalore 57.
(By M.D.A. Advocate)
Vs
Defendant:- 1. Smt C.S.Sharada
w/o M.B.Nanjundegowda,
aged about 51 years,
residing at No.128 in front of FCI,
Vijinapura,
Dooravaninagar post,
Bangalore- 560016.
And also at
Smt C.S.Sharada
W/o M.B.Nanjudegowda,
aged about 51 years,
residing at B.Chennasandra village,
Kalyananagar post,
Bangalore 560 043.
(By S.J. Advocate)
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O.S.NO.156/2010
Date of Institution of the suit : 06-01-2010
Nature of the suit : Declaration & Injunction
Date of commencement of : 24-07-2013
recording of the evidence
Date on which the Judgment : 31-03-2021
was pronounced
Total Duration Years Months Days
11 02 25
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The plaintiff is before the court for the relief of declaration to declare the sale deed dated 23/03/1998 as null and void and consequently cancel the said sale deed and put the plaintiffs in the possession of the suit schedule property and declare the plaintiff as absolute owner of the suit property, and for permanent injunction restraining the defendants from alienating the suit schedule property to any other person or persons and to grant such other reliefs.
2. Brief facts of the plaintiff's case is that, the plaintiff is the son of late Muniyamma, who was the owner of the property bearing Sy.No.69/1, measuring an extent of 4 O.S.NO.156/2010 2 acres 3 guntas, situated at Banasawadi village, K.R.Puram hobli, Bangalore east taluk.
3. On 26/7/1984 there was gazette notification for acquiring the certain properties for formation of residential layout by the BDA Sy.No.69/1 was also one of the said property.
4. Late Muniyamma, the mother of the plaintiff approached the several authorities with the intention to get her property de-notified from the acquisition proceedings but was not successful being poor, ignorant, illiterate widow without neither money nor influence.
5. Taking advantage of the situation and also the innocence of the said Muniyamma, Sri Sathyanarayana, Nanjundegowda, and few others having entered into conspiracy approached her and offered assistance to get the land de-notified, in furtherance of the same the plaintiff's mother hand also paid a sum of Rs 25,000/- by incurring huge debts. Further the said person also obtained signature of the Smt. Muniyamma on certain blank paper on the guise that the same were required to enable them to 5 O.S.NO.156/2010 approach the government officials to get the property de- notified.
6. Said Sathyanarayana, Nanjundegowda and others in furtherance of their conspiracy had put up a small sheds over the property and having obtained the consent of the plaintiff's mother Smt. Muniyamma by inducing her that the same was being done to give impression that the property was developed as such same would be let off from acquisition by the Bangalore development authority.
7. With the consent of the plaintiff's mother the said persons put up construction and obtained the electricity connection by showing the property as sites and that the same could be made use for getting land de-notified.
8. That claims and objections were also field before the land acquisition officer by the persons related to Sathyanarayana and Nanjundegowda claiming to be residing in the said property having purchased the same, likewise certain persons were made to reside on the property. Late Muniyamma was informed that they are residing in the property or consumption of land acquisition 6 O.S.NO.156/2010 officer and promised that they would vacate property after formalities of the acquisition were completed. Believing the false promise, assurance and representation made by Late Muniyamma permitted them to occupy the property. One among the said persons is the defendant herein who is the wife of M.B.Najundegowda. The defendant thus becomes a permissible occupant of portion of Sy.No.69/1 measuring 30 x 40 feet which is a portion of the Sy.No.69/1, which is the suit schedule property.
9. The plaintiffs mother died on 16/2/1992. The plaintiff who was aware of the entire transaction permitted the defendant to continue in the possession of the schedule property as the acquisition proceedings were yet to be completed.
10. That the said property was not de-notified but portion of the said property was utilized for formation of ring road while rest of the portion remained with the plaintiff's mother as the same was utilized by the BDA, plaintiff's mother continued to be in actual physical possession of the property.
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O.S.NO.156/2010
11. That in the year 1998-99 after formation of the ring road were completed wherein a portion of Sy.No.69/1 was lost remaining portion continued in the name of the late Muniyamma.
12. After confirming of the completion of the acquisition proceedings the plaintiff requested the defendant to vacate schedule property. The defendant requested permission to continue in possession for a period of three years to make necessary arrangement elsewhere and vacate the suit schedule property but the defendant instead of taking steps to vacate the schedule property clandestinely put up the construction.
13. When the said act of the defendant was questioned by the plaintiff the defendant claimed to be the owner of the suit schedule property as such declined to vacate the suit schedule property.
14. The plaintiff made enquiries and learnt that said Sathyanarayana and Nanjundegowda and other who had taken signature on blank papers had misused the same and fabricated forged and concocted documents. The plaintiff 8 O.S.NO.156/2010 was advised to file suit for possession by paying court fee as the plaintiff did not have adequate financial resources he could not file the suit earlier.
15. Neither the plaintiff nor his mother had executed any legal valid document that would result in transferring of the property, after the death of Muniyamma plaintiff obtained the copies of the RTC and Mutation, it is evident from the said documents that legally the possession remains with the plaintiff and there has been no valid transaction transferring the suit schedule property as such any document alleged to have been executed do not confer any right, title and interest to the defendant on the suit schedule property.
16. Plaintiff recently learnt that the defendant has got sale deed dated 23/3/1998 in her favor, it is clear from the said document that the defendant has got the sale deed executed in her favor clandestinely without the knowledge of either the plaintiff or his mother based on the fabricated document. The said sale deed is void ab-initio as the person who has executed the same does not have any right, title or 9 O.S.NO.156/2010 interest on the suit schedule property more so is clearly evident from the sale deed that Sri M.B.Nanjudegowda husband of defendant has executed a registered sale deed in favor his wife the defendant herein and it is crystal clear from the transaction that no consideration is paid for the alleged sale, further the said sale deed was executed after the death of Smt. Muniyamma who is alleged to executed the GPA.
17. That the very sale deed registered on 23/3/1998 is fabricated and does not transfer any title as such any other documents obtained based on the alleged sale deed is also not valid. Though the alleged sale deed was registered back on 23/3/1998 the same is not seen in the RTC and also encumbrances as such the plaintiff did not have knowledge of the same.
18. The defendant who was in permissible occupation is claiming ownership of the property as such the plaintiff got issued legal notice dated 18/11/2009 withdrawing the permission granted to occupy the suit schedule property and calling upon the defendant to quit 10 O.S.NO.156/2010 and deliver the vacant possession of the suit schedule property. The defendant who received the legal notice neither replied nor complied with the demand made in the said notice. The defendant having received the legal notice is making hectic efforts to sell the suit schedule property. The plaintiff also learnt that somebody is intending to purchase the suit schedule property left with no other alternative the plaintiff has filed the present suit seeking declaration and cancellation of the sale deed dated 23/3/1998. With the above facts the plaintiff has sought for above said reliefs.
19. After service of summons the defendant has appeared before the court and has filed the written statement by denying and disputing the plaint averments wherein it is contended that, the suit of the plaintiff is not maintainable both in law and on facts. The suit is clear abuse of process of the process of the court and the suit is liable to be dismissed with exemplary costs. The suit of the plaintiff as filed is not sustainable either under law. From the averments made in the plaint itself, it is clear that the 11 O.S.NO.156/2010 plaintiff claims that his title is disputed but has failed to seek relief of declaration of his title. The defendant is admittedly in possession of the property and the plaintiff has failed to seek any relief for possession of the suit schedule property, under such circumstances also the suit is misconceived. The suit relief [a] seeking to declare sale deed as null and void and for cancellation of the sale deed is not sustainable under the law. The suit itself barred by limitation and further there are no circumstances to declare sale deed as null and void or to cancel the sale deed. Further, in respect of the suit relief, the plaintiff ought to have valued the prayer on the market value of the property and pay court fee on the market value. The court fee paid is grossly insufficient. In such circumstances, the issue of court fee has to be preliminarily enquired before proceeding with the merits of the case. The admitted facts in the plaint reflects that the defendant is the owner of the suit property and consequently the plaintiff has no locus-standi to seek for perpetual injunction against the defendant from alienating the suit property. The owner of the property 12 O.S.NO.156/2010 cannot be restrained perpetually from alienation of this property. Hence, the suit relief is misconceived and not maintainable. There is absolutely no cause of action for the suit and the cause of action alleged in the plaint are fictitious and untenable. It is settled principle of law that cause of action and the period of limitation once commenced will not stop or be renewed by any subsequent event. Hence, the suit is apparently barred by limitation.
20. It is not admitted that the plaintiff is the son of late Muniyamma was the owner of the property in Sy.No. 69/1 at Banaswadi village, K.R.Puram hobli, Bangalore east taluk. The defendant is unaware of the alleged gazette notification dated 26-07-1984 referred to in paragraph -4 of the plaint. It is also not admitted that Muniyamma approached several authorities to get her properties de- notified. It is denied that Muniyamma was poor, ignorant, illiterate widow without money or influence. Muniyamma was worldly wise and capable of managing her assets. It is denied that taking advantage of the alleged situation, Sri.Sathyanarayan and Nanjundegowda and few others 13 O.S.NO.156/2010 conspired and offered assistance to get their land de- notified. These allegations are baseless and unfounded. It is denied that plaintiff's mother had paid a sum of Rs.25,000/-. It is denied that Muniyamma's signature was obtained on certain blank stamp papers on the guise that the same was required to approach the Government officials to get the property de-notified. It is misleading to allege that Sathyanarayan and Nanjundegowda had put up small sheds with the consent of Muniyamma as part of their conspiracy by giving an impression that the property would be let off acquisition. It is also misleading to allege that the construction on the suit schedule property and the power connection is obtained with the consent of Muniyamma in any other proceedings. However, it is misleading to allege that Sathyanarayan and Nanjundegowda were residing in the property at the concession of Muniyamma. It is absolutely false to allege that they had completed to vacate the property after the formalities of acquisition was completed and on such promise, they were permitted to occupy the property. It is baseless to allege that the 14 O.S.NO.156/2010 defendant is a permissible occupant of the suit schedule property.
21. This defendant is unaware of the date of death of plaintiff's mother Smt Muniyamma and the plaintiff permitting the defendant to continue in possession will not arise for consideration at all. It is denied that, the plaintiffs mother was in possession of the property. It is denied that after formation of the ring road, the remaining portion continued in the name of Muniyamma. It is also denied that the plaintiff after confirming the completion of acquisition proceedings requested the defendant to vacate the suit schedule property. It is denied that the defendant requested to approached the defendant to continue in possession for 3 years. The plaintiff never requested or approached the defendant to vacate the suit property and is fully aware that the defendant is the absolute owner of the suit property.
22. It is baseless to allege that Sathyanarayan and Nanjundegowda had taken signatures on blank papers and misused the same by fabrication and concocting the 15 O.S.NO.156/2010 documents. The plaintiff has taken a false plea that due to inadequate financial sources, he has not filed suit earlier.
23. It is misleading to allege that the plaintiff or his mother had executed legally valid documents. The alleged RTC and mutation has no relevance since the property has come within the municipal limits long ago. It is misconceived, baseless to allege that the possession remains with the plaintiff and document executed do not confer any right, title or interest to the defendant. It was open to one and all including the plaintiff who had the knowledge regarding the sale deed in favour of the defendant on 23-03-1998. There was no reason to inform the plaintiff about the said sale deed or his mother. The sale deed is valid in law and executed by the person who is duly authorized under the law. It was denied that the sale deed is without consideration. It is denied that the sale deed was executed after death of Muniyamma. Even otherwise, the power of attorney is coupled with interest and there was no notification of death as required under the law. The acts of the power of attorney is valid and binding on the legal heirs 16 O.S.NO.156/2010 of the executor of the power of attorney. The defendant has got valid title to the suit schedule property and has very much reflected in the revenue records and the EC's. The documents relied upon by the plaintiff is irrelevant and concocted. It is true that the plaintiff issued a frivolous legal notice on 18-11-2009 which has been suitably replied by the defendant on 30-11-2009. The defendant has suitably replied the notice and the allegation that the same has not been replied is false and baseless.
24. The Muniyamma had properties in Sy.No. 69/1 of Banaswadi village, K.R.Puram hobli, Bangalore East taluk, she, with an intention to alienate the property as sites earmarked and offered the same for sale. In such process, she negotiated with Nanjundegowda in respect of site Nos.43 & 44 and agreed to transfer the same in his favour or in favor of his nominees. Pursuant to such agreement, she executed an irrevocable power of attorney on 01-08- 1995 after receiving full consideration. In fact, Muniyamma has sold several sites in the said locality and the idea of the plaintiff filing the case only against the suit site discloses 17 O.S.NO.156/2010 the fact that the suit is based on ulterior motives. The main intention of the plaintiff is to harass the defendant and extract monetary gains. In fact, the very adjacent site No.43 was alienated by Nanjundegowda as power of attorney holder of Muniyamma and the plaintiff has not raised any objection in respect of the property. The plaintiff is estopped by his own conduct. By virtue of the power of attorney and affidavit and also on agreement to sell the property the possession of the suit property was delivered to Nanjundegowda in the year 1985 itself. By virtue of the powers conferred, he constructed the existing structure thereon. Subsequently, he has transferred the suit schedule property in favour of the defendant under a registered sale deed dated 23-03-1998 and delivered possession to the defendant accordingly. The defendant is in possession and enjoyment of the suit schedule property since the date of sale. The suit schedule property is presently in actual physical possession of the tenant of the defendant by name C.Muniyappa. The suit schedule property is enclosed with compound wall since the year 1985. The power connection 18 O.S.NO.156/2010 to the building in the suit schedule property has been obtained from BESCOM and water and drainage facility from BWSSB. The suit schedule property was earlier within jurisdiction of Banaswadi group panchayat and presently comes within jurisdiction of BBMP and the khatha in respect of suit schedule property is registered in the name of the defendant. Since last two and half decades Nanjundegowda and his family members have been in possession of the suit schedule property. Their use and enjoyment of the suit schedule property during her lifetime was never questioned by Muniyamma. All the claims made by the plaintiff are unfounded, motivated and baseless. The plaintiff has unnecessarily dragged the defendant to this frivolous legal proceedings. Hence the defendant seeks to dismiss the suit with exemplary costs.
25. Apart from the written statement the defendant has also filed additional written statement by contending that the plaintiff has no subsisting right in respect of the suit schedule property and cannot seek for amended relief. The sale deed under which the defendant acquired title to the 19 O.S.NO.156/2010 property is admittedly executed on 23-03-1998 which was well within the knowledge of the plaintiff as apparent from the averments made in the original plaint itself. It is also clear that the present amendment seeking for declaration beyond the period of limitation and presenting amended plaint in September 2012 is clearly barred by limitation. The plaintiff who is seeking declaration of title and possession of in respect of the schedule property has not disclosed the market value of the schedule property nor has paid court fee on the market value of the schedule property. The plaint is liable to be rejected due to want of sufficient court fee. The plaintiff has no title to the schedule property and has no right to seek possession from the defendant, on admitted facts, it is clear that since August 1985, the possession of the schedule property has been delivered by its sole owner Muniyamma to the defendant's husband and thereafter the same has been in possession and enjoyment of the defendant and her husband. Hence, under any circumstances, the defendant has perfected her title and further the right to seek possession is also barred by 20 O.S.NO.156/2010 limitation. With these contentions seeks to dismiss the application.
26. On the basis of the above pleadings the following re-casted issues were framed by my predecessor on 04-08- 2014 which is as under;
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff proves that the husband of the plaintiff was in permissive possession of the suit property?
3. Whether the plaintiff proves that the sale deed executed by Mr.M.B.Nanjunde Gowda in favour of defendant on 23-03-2008 does not create any right, title or interest over the suit schedule property?
4. Whether the plaintiff is entitled to recover possession of the suit schedule property from the defendant?
5. Whether the plaintiff proves that the suit property is valued properly and court fee paid on the plaint is sufficient?
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O.S.NO.156/2010
6. Whether the suit of the plaintiff is within the stipulated period of limitation?
7. What order of decree?
27. In order to substantiate the plaint averments legal heir of the plaintiff Mr.Nataraja is examined as P.W.1 and Ex.P.1 to 15 are marked. Ex.P.1 is GPA dated 13-03- 2013, Ex.P.2 is certified copy of the sale deed dated 23-03- 1998, Ex.P.3 is record of rights for the year 2009-10, Ex.P.4 is copy of mutation register, Ex.P.5 is death certificate of Muniyamma, Ex.P.6 is copy of the legal notice dated 18-11- 2009, Ex.P.7 & 8 are postal receipts, Ex.P.9 is acknowledgment, Ex.P.10 is returned postal envelop, Ex.P.11 is certified copy of the chief examination affidavit of Nanjundegowda in O.S.No.483/2010 marked during the cross examination. Ex.P.12 is certified copy of the chief examination affidavit of Nanjundegowda in O.S.No.6436/2004 marked during the cross examination, Ex.P.13 is certified copy of the affidavit dated 01-08-1985 marked during cross examination, Ex.P.14 is certified copy of the GPA dated 01-08-1985 marked during cross 22 O.S.NO.156/2010 examination, Ex.P.15 is certified copy of the sale deed dated 23-03-1998 marked during cross examination.
28. And from defendants side M.B.Nanjundegowda has examined as D.W.1 and one Mr.B.Krishnegowda has examined as D.W.2. And Ex.D.1 to 18 are marked. Ex.D.1 to 3 are tax paid receipts, Ex.D.4 is BWSSB application, Ex.D.5 is Bescom application, Ex.D.6 is BWSSB bill, Ex.D.7 to 9 are photographs, Ex.D.10 is CD, Ex.D.11 is certified copy of the GPA dated 01-08-1985, Ex.D.12 is certified copy of the sale deed dated 10-08-1992, Ex.D.13 is certified copy of the affidavit, Ex.D.14 is certified copy of the judgment and decree passed in O.S.No.6436/2004, Ex.D.15 is office copy of the legal notice dated 30-11-2009, Ex.D.16 is returned RPAD cover, Ex.D.16(a) is content of RPAD, Ex.D.17 & 18 are Bescom bills, Ex.D.19 is GPA dated 25-02-2019, Ex.D.20 is certified copy of the affidavit dated 01-08-1985.
29. Heard the arguments, perused the records;
30. Now my answer to the above issues as under;
i) Issue No.1:- In the Negative
ii) Issue No.2:- In the Negative
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O.S.NO.156/2010
iii) Issue No.3:- In the Negative
iv) Issue No.4:- In the Negative
v) Issue No.5:- In the Affirmative
vi) Issue No.6:- In the Negative
vii) Issue No.7:- as per final order
for the following;
REASONS
31. Issue No.1:- The plaintiff is before the court
for the relief of declaration to declare that the sale deed dated 23-03-1998 is null and void and to cancel the said sale deed and to put the plaintiff in possession of the suit schedule property by declaring that plaintiff is the absolute owner of the suit schedule property and for permanent injunction and such other reliefs.
32. Since this suit is for declaration of ownership over the suit schedule property before discussing the merits of the case I would like to consider the Section 110 of Indian Evidence Act which reads as under;
110. Burden of proof as to ownership.-
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O.S.NO.156/2010 When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
33. In this particular case also the plaintiff has filed the suit to declare that the plaintiff is the owner of the suit schedule property and it is admitted fact that the defendant is in possession of the suit schedule property. In view of the above provision the burden is upon the plaintiff to establish that defendant is not the owner of the suit schedule property.
34. Apart from that, I would like to rely upon the decision reported in 2018 (3) KCCR 2175 rendered by Hon'ble High Court of Karnataka in Sri.Bharatesh Balasaheb Kuppanatte and another Vs Sri. Noorbabasab Peeraso Mantoorkar, it is held that, " The plaintiff has to win or lose the case on his own, he cannot take the 25 O.S.NO.156/2010 weakness of the defendant and make his case strong". In the backdrop of this let me examine the case of the plaintiff.
35. The plaintiff is before the court on the above said relief on the ground that Sy.No. 69/1 of Banaswadi village was earlier belonged to one Smt.Muniyamma wife of Nanjundappa and the BDA was issued the notification for acquisition of the properties and the properties of Muniyamma in Sy.No. 69/1 was also one among the property for acquisition. In the said circumstances the Muniyamma approached several authorities in order to retain the property from acquisition. In this circumstances the Nanjundegowda and others who met the Muniyamma and promised her to save the property from acquisition and the said persons by making false promise constructed small sheds in order to show that the said property was developed and same will be dropped from the acquisition proceedings. In the said circumstances the said persons obtained LTM of Smt.Muniyamma to save property and the documents were created and on the basis of created documents the sale 26 O.S.NO.156/2010 deed has been executed. The defendant was in permissive possession of the suit schedule property and after the acquisition proceedings the defendant was requested to vacate the property but she did not vacate and claims she is the owner of the suit schedule property and hence they sought for the above said reliefs.
36. It is the definite contention of the plaintiff that, the said Muniyamma has not at all sold the property to defendant. On the basis of created GPA and other documents the sale deed has been executed, the same has to be canceled. The defendant has appeared before the court has filed the written statement to contest the suit and has taken contention that, she is the owner of the suit schedule property by virtue of the registered sale deed and plaintiff is not the son of Smt.Muniyamma and with other contentions sought for dismissal of the suit.
37. In view of specific stand by the defendant even in the reply notice which is produced at Ex.D.15 and also in the written statement that, "plaintiff is not the son of 27 O.S.NO.156/2010 the said Muniyamma", plaintiff has to prove that he is the son of Muniyamma but the plaintiff has not produced the single document before the court to substantiate that he is the son of Muniyamma, apart from that, the original plaintiff has not at all stepped into the witness box. One Mr.Nataraj plaintiff No.1(b) was examined as the P.W.1, on the basis of the GPA produced at Ex.P.1. The suit filed by the original plaintiff Sri.Venkataswamy and during the course of proceedings he died on 16-08-2019 and the GPA was executed in favour of the plaintiff No.1(b) on 13-03-2013, but the said GPA is not a valid document for the simple reason that, the said GPA is not at all executed/authenticated as required under law because it is not at all executed before the notary or any other competent officer whom law authorized to recognize the execution/authentication. And on the basis of the said Ex.P.1 plaintiff No.1(b) was examined during the lifetime of original plaintiff on 24-07-2013 and his evidence in my humble opinion is not a valid oral evidence because Ex.P1 is a invalid document and he has not given his oral evidence 28 O.S.NO.156/2010 as a legal heir of original plaintiff after the death of Venkataswamy, but he has adduced the evidence on the basis Ex.P.1- GPA during the lifetime of original plaintiff on 24-07-2013. When the Ex.P.1 is not validly executed before the notary the said document will not authorize the power of attorney holder to depose before the court and in view of this fact his oral evidence cannot be considered. That apart as already discussed even original plaintiff or his legal heirs has not at all produced the connecting document to establish that, original plaintiff Venkataswamy is the son of deceased Muniyamma. In this regard the contention taken in the written statement and reply notice is very much important because in the written statement at para 6 it is categorically contended that, "It is not admitted that the plaintiff is the son of late Muniyamma" and it is also stated in the reply notice at Ex.D.15 at para No.2 "it is not admitted that he is the son of Muniyamma". So in view of this definite contention the plaintiff should have taken little pain in producing the connecting document before the court to establish that, Venkataswamy is the son 29 O.S.NO.156/2010 of deceased Muniyamma. The P.W.1 during the course of cross examination has stated that, "Venkataswamy is the only son of Muniyamma. I have the G-Tree of Muniyamma". But despite this, he has not produced a single piece of paper to establish that Venkataswamy is the son of Muniyamma.
38. Now coming to aspect of identity of property and title, let me consider that the suit is filed by the plaintiff in respect of "All that piece and parcel of the property bearing site No.44, house list khatha No.554/44, measuring East to West 40 feet and North to South 30 feet in all totally measuring 1200 sq.ft. Situated at Banasawadi Dhakle, Chennasandra Village, Krishnarajapura Hobli, Bangalore East Taluk and bounded on the East by 20 feet road, West by Gangareddy property, North by Site No.43 and South by Site No.45".
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39. The plaintiff is relying upon Ex.P.13 and 14 documents which have been confronted during the course of cross examination of D.W.1 to substantiate the case of the plaintiff. Ex.P.13 is a affidavit, according to plaintiff the same is fabricated. As per the said affidavit the same was executed by Venkataswamy who is none other than the plaintiff in favour of the one Mr.Sathyanarayana in respect of site No.46 and further the plaintiff is more relying upon Ex.P.14 to say that, the suit schedule property has been sold by fabricating the Ex.P.14. On perusal of the said document which is a GPA dated 01-08-1985 stated to have been executed by Muniyamma in favour of Sathyanarayan in respect of the site No.46 and in the said GPA it is clearly mentioned that, site No.46 is carved out of Sy.No. 69/1 and boundaries of site No.46, towards the East 20 feet road, towards the West Gangareddy property, towards the North site No.45, towards the South site No.47. In comparison of these 2 documents let me consider the Ex.P.15, which according to the plaintiff the same is executed by Nanjundappa in favour of his wife Smt.Sharada who is the 31 O.S.NO.156/2010 defendant herein. On perusal of the Ex.P.15 which is the sale deed in respect of khatha No.554/44, site No.44 bounded that East: 20 feet, West: Gangareddy property, North: site No.43, South: site No.45. The suit schedule property is tallies with Ex.P.15 but the boundaries and site number mentioned in Ex.P.13 and P14 does not tally with Ex.P.15. According to the plaintiff the property covered under Ex.P.15 is sold on the basis of fabricating of Ex.P.13 & 14. Except those documents plaintiff has not at all produced any other documents to substantiate the fabrication of documents. But surprisingly the property covered under Ex.P.13 and 14 is entirely different from Ex.P.15 and suit schedule property. The definite case of the plaintiff is that, the Nanjundegowda and others have obtained signature over the blank papers by assuring Muniyamma that, Sy.No. 69/1 will be left out from the acquisition and for the said purpose the documents have been obtained and it is also contention of the plaintiff that, in order to leave the Sy.No. 69/1 from the acquisition proceedings some small 32 O.S.NO.156/2010 sheds were constructed and persons were allowed to reside therein. But the plaintiff has not explained how the khatha number and site number were allotted to the said sites, but in the suit the plaintiff is claiming it is in the survey number and another important aspect is that the plaintiff claims that he is the son of Muniyamma and she was very poor, ignorant, illiterate widow and her position was exploited by Sathyanarayan, Nanjundegowda and others but he has not explained to the court where he was in that situation, being the son he should have discharged his duty along with his mother without allowing the others to exploit the situation. He has simply silenced his role in the pleading for the said period. When the property covered under Ex.P.13, 14 & 15 are entirely different this court is not in position to belive the story put fourth by the plaintiff. Hence I am of the firm opinion that the plaintiff has failed to discharge his burden as required under Section 110 of Evidence Act to prove that the defendant is not the owner when she is in possession of the property to hold that plaintiff is the owner of the suit schedule property.
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40. On the other hand the defendant has specifically contended that she is the absolute owner of the suit property by virtue of the sale deed executed by Nanjunde Gowda as GPA holder of Smt.Muniyamma, has produced certified copy of GPA dated 01-08-1985. The said GPA is executed by Smt.Muniyamma in favour of Nanjundegowda in respect of site No.43 & 44 and on the same day Ex.D.20 affidavit is also executed before the notary in respect of site No.43 & 44.
41. On careful examination of the Ex.D.11 and 20, which are certified copies of GPA and Affidavit, it is clear these two documents are the basis for the very dispute.
42. Ex.D.11 is the GPA dated 1/8/1985 executed by Smt Muniyamma, the signature (LTM) is not disputed by the plaintiff, but it is contended that the said LTM was obtained to the blank paper by the Sathyanarayana and Nanjundegowda and others on the guise of preventing the Sy No.69/1 of Banasawadi village from acquisition. Ex.D.11 GPA is notarized as required under the law, when the same is notarized then the court has to draw the presumption as 34 O.S.NO.156/2010 required under section 85 of the Indian Evidence Act. Which reads as under;-
Sec.85, Presumption as to powers of attorney.- the court shall presume every document purporting to be power of attorney and to have been executed before and authenticated by a notary public, or any court, judge, magistrate, Indian consul or vice-consul or representative of the central government, was so executed and authenticated.
43. When the Section 85 of Evidence Act authorizes the court to draw the presumption, this court having no other alternative but draw the presumption regarding the due execution of the GPA ie Ex.D.11 in the absence of the rebuttal evidence, because the plaintiff has not lead any evidence to rebut the said presumption.
44. Now let me consider the content of the said GPA, the same is executed by the Smt Muniyamma on 1/8/1985 in favour of M.B.Nanjundegowda, authorizing him to deal 35 O.S.NO.156/2010 with the site No.43 and 44 formed in Sy No.69/1 of Banasawadi village, and it is also mentioned in the said GPA, that she will never cancel the said GPA. From perusal of the content of the said GPA, it is very much clear that in the Sy No.69/1 sites were formed during 1985 itself, and out of the said sites site No.43 and 44 were given to M.B.Nanjundegowda to deal with it.
45. On the same day another affidavit is also executed by said Smt Muniyamma, wherein it categorically mentioned that site No.43 and 44 have given to the said M.B.Nanjundegowda on the basis of the GPA, and she has received the full consideration of Rs 7000/- of the said sites. Very interestingly said affidavit is also notarized and the same is signed by both plaintiff and his mother Smt Muniyamma. The arguments of the plaintiff is that the signature of the Muniyamma was obtained on the blank papers and later on same were created, but plaintiff never whispered anything about his signature over the Ex.D.12. for the sake of convenience the contents of the affidavit it extracted here which reads as under;-
36
O.S.NO.156/2010 ಪಪ್ರಮಮಾಣ ಪತಪ್ರ ಬಬಬೆಂಗಳಳೂರರು ದಕಕ್ಷಿಣ ತತಾಲಳೂಲ್ಲೂಕರು, ಕಕೃಷಷ್ಣರತಾಜಪಪುರ ಹಬಳೂಹೋಬಳ, ಬತಾಣಸವತಾಡ ದತಾಖಲಬ, ಚನನ್ನಸಬೆಂದದ್ರ ಗತಾದ್ರಮದಲಲ್ಲೂ ವತಾಸವತಾಗಿರರುವ, ಲಬಹೋಟಟ್ ನಬೆಂಜರುಬೆಂಡಪಪ್ಪನವರ ಮಗ ಸರುಮತಾರರು 40 ವಷರ್ಷ ವಯಸರುಸ್ಸುಳಳ್ಳ ವಬಬೆಂಕಟಸತಾಸ್ವಾಮಿ ಆದ ನತಾನರು ಕಬಳಕಬೆಂಡಬೆಂತಬ ಪದ್ರಮತಾಣ ಮತಾಡ ಹಬಹೋಳರುವಪುದಬಹೋನಬಬೆಂದರಬ, ಅದತಾಗಿ ನನನ್ನ ಅಧಿಕತಾರ ಮತರುತ್ತು ಹಕರುಕ್ಕುದತಾರಿಕಬಗಬ ಒಳಪಟಟ್ಟಿರರುವ ಡಟಬಳೂಹೋ ಚನನ್ನಸಬೆಂದದ್ರ ಗತಾದ್ರಮದ ಸವಬರ್ಷ ನಬೆಂಬರಟ್ 69/1 ನಬಹೋ ನಬೆಂಬರಟ್ ನಲಲ್ಲೂ ವಬೆಂಗಡಸಿರರುವ ಸಬಸೈಟಟ್ ಗಳ ಪಬಸೈಕ 43 ಮತರುತ್ತು 44 ನಬಹೋ ನಬೆಂಬರರುಗಳರುಳಳ್ಳ ಪಪೂವರ್ಷ-ಪಶಶ್ಚಿಮ 40 ಅಡ ಮತರುತ್ತು ಉತತ್ತುರ-ದಕಕ್ಷಿಣ 60 ಅಡಗಳರುಳಳ್ಳ ಖತಾಲ ಸಬಸೈಟರುಗಳನರುನ್ನ ನನನ್ನ ದರದರುಗತಾಗಿ ಈ ದಿನ ಇದಬಹೋ ಬಬಬೆಂಗಳಳೂರರು ದಕಕ್ಷಿಣ ತತಾಲಳೂಲ್ಲೂಕರು, ಕಕೃಷಷ್ಣರತಾಜಪಪುರದ ಹಬಳೂಹೋಬಳ, ದಳೂವತಾರ್ಷಣ ನಗರ ಪಹೋಸಟ್ಟ್ಟಿ, ವಜಿನತಾಪಪುರ, ಎಫಟ್. ಸಿ. ಐ. ಎದರುರರು 128 ನಬಹೋ ನಬೆಂಬರರು ಮನಬಯಲಲ್ಲೂ ವತಾಸವರರುವ ಬಬಳೂಹೋರಬಹೋಗಗೌಡರ ಮಗ ಶದ್ರಹೋ ಎಬೆಂ.ಬ. ನಬೆಂಜರುಬೆಂಡಬಹೋಗಗೌಡ ಎಬೆಂಬರುವರಿಗಬ ರಳೂ.7,000/ (ಏಳರು ಸತಾವರ) ಗಳಗಬ ಶರುದದ್ದ ಕದ್ರಯಮತಾಡರರುತಬತ್ತುಹೋನಬ. ಕದ್ರಯದ ಹಣವನರುನ್ನ ಪಪೂತತಾರ್ಷ ಸದರಿ ಎಬೆಂ.ಬ.ನಬೆಂಜರುಬೆಂಡಬಗಗೌಡ ಆದ ನಿಮಿಮಬೆಂದ ಬಬಹೋಬತಾಕಯತಾಗಿ ಸತಾಕಕ್ಷಿಗಳ ಮೊಖತ್ತು ಪಡಬದಿರರುತಬತ್ತುಹೋನಬ. ಇನಬನ್ನಹೋನಳೂ ನಿಮಿಮಬೆಂದ ನನಗಬ ಬತಾಕ ಬರಬಬಹೋಕತಾಗಿಲಲ್ಲೂವತಾದದ್ದರಿಬೆಂದ ಮೆಲಕ್ಕುಬೆಂಡ ಸಸ್ವಾತತ್ತುನರುನ್ನ ಸಹತಾ ಈ ದಿನವಬಹೋ ನಿಮಮ ಸತಾಸ್ವಾಧಿಹೋನಕಬಕ್ಕು ಬಟರುಟ್ಟಿಕಬಳೂಟಟ್ಟಿರರುತಬತ್ತುಹೋನಬ. ಇನರುನ್ನ ಮರುಬೆಂದಬ ಎಬೆಂ.ವ.ನಬೆಂಜರುಬೆಂಡಬಹೋಗಗೌಡ ಆದ ನಿಹೋವಪು ನಿಮಮ ಇಷತಾಟ್ಟಿನರುಸತಾರ ಸದರಿಹೋ ಸಬಸೈಟರುಗಳಲಲ್ಲೂ ಮನಬ ವಗಬಸೈರಬ ಕಟಟ್ಟಿಕಬಳೂಬೆಂಡರು ಅನರುಭವಸಿಕಬಳೂಬೆಂಡರು ಬರರುವಪುದರು. ಈ ಬಗಬಗ್ಗೆ ನನನ್ನ ಮತರುತ್ತು ನನನ್ನ ಉತತ್ತುರ ವತಾರಸರುದತಾರರ ಯತಾವ ವಧವತಾದ ತಬೆಂಟಬ ತಕರತಾರರುಗಳರು ಮತರುತ್ತು ಹಕರುಕ್ಕು ಭತಾಧಧ್ಯತಬಗಳರು ಇರರುವಪುದಿಲಲ್ಲೂ. ಹತಾಲ ಸಕತಾರ್ಷರದವರರು ರಬವನರುಧ್ಯ ಸಬಸೈಟರುಗಳ ರಿಜಿಸಬಟ್ಟಿಸಹೋಷನಟ್ ನಿಲಲ್ಲೂಸಿರರುವ ಪದ್ರಯರುಕತ್ತು ನಿಮಮ ಹಬಸರಿಗಬ ಕದ್ರಯಪತದ್ರ ರಿಜಿಸತಾಟ್ಟಿಸಗಳರು ಆಗದಬಹೋ ಇರರುವಪುದರಿಬೆಂದ ನಮಮ ತತಾಯಿ ಶದ್ರಹೋಮತಿ ಮರುನಿಯಮಮನವರಿಬೆಂದ 37 O.S.NO.156/2010 ನಿಮಮ ಹಬಸರಿಗಬ ನಬಳೂಹೋಟರಿಯಲಲ್ಲೂ ಜಿ.ಪ.ಎ. ಬರಬಸಿಕಬಳೂಟಟ್ಟಿರರುತಬತ್ತುಹೋನಬ. ಸದರಿಹೋ ಜಿ.ಪ.ಎ. ಮಳೂಲಕ ಸಸ್ವಾತತ್ತುನರುನ್ನ ನಿಮಮ ಇಷತಾಟ್ಟಿನರುಸತಾರ ಅನಭವಸರುವಪುದರು. ಮರುಬೆಂದಬ ಸದರಿಹೋ ಜಿ.ಪ.ಎ.ಯನರುನ್ನ ನತಾವಪುಗಳರು ಯತಾವ ಕತಾರಣಕಕ್ಕು ರದರುದ್ದ ಪಡಸರುವಪುದಿಲಲ್ಲೂ . ಮರುಬೆಂದಬ ಸಕತಾರ್ಷರದವರರು ಕದ್ರಯಪತದ್ರ ರಿಜಿಸತಾಟ್ಟಿಸಗಲರು ಅನರುಮತಿ ಕಬಳೂಟಟ್ಟಿ ಕಳೂಡಲಬಹೋ ನಿಹೋವಪು ಬಬೆಂದರು ಕರಬದತಾಗ ನತಾವಪು ಬನಟ್ ತಕರತಾರರು ಇಲಲ್ಲೂದಬ ಬಬೆಂದರು ನಿಮಿಮಬೆಂದ ಬಬಹೋರಬ ಯತಾವ ಪದ್ರತಿಫಲವನರುನ್ನ ಪಡಬಯದಬ ನಿಮಮ ಖಚರುರ್ಷನಿಬೆಂದ ಕದ್ರಯಪತದ್ರ ರಿಜಿಸಟ್ಟಿರಟ್ ಮತಾಡಸಿಕಬಳೂಡಲರು ಬದದ್ದನತಾಗಿರರುತಬತ್ತುಹೋನಬ. ಇದಕಬಕ್ಕು ನತಾನರು ತಪಪ್ಪದಲಲ್ಲೂ ನಿಹೋವಪು ನನನ್ನ ಮೆಹೋಲಬ ಕಬಳೂಹೋಟರ್ಷ ಕದ್ರಮ ಜರಿಗಿಸಿ ಕದ್ರಯ ಪತದ್ರ ರಿಜಿಸಟ್ಟಿರಟ್ ಹಬಳೂಬೆಂದಲರು ಮತರುತ್ತು ಅದರಿಬೆಂದ ನಿಮಗತಾಗಬಹರುದತಾದ ಖಚರುರ್ಷ ವಬಚಶ್ಚಿಗಳನರುನ್ನ ನನಿನ್ನಬೆಂದ ವಸಳೂಲತಾಮಡಕಬಳೂಳಳ್ಳಲರು ಸಹತಾ ನಿಮಗಬ ಅಧಿಕತಾರ ಕಬಳೂಟಟ್ಟಿರರುತಬತ್ತುಹೋನಬ, ಎಬೆಂದರು ಮೆಹೋಲಕ್ಕುಬೆಂಡ ಎಬೆಂ.ಬ. ನಬೆಂಜರುಬೆಂಡಬಹೋಗಗೌಡರವರಿಗಬ ಪದ್ರಮತಾಣ ಮತಾಡ ಹಬಹೋಳರರುತಬತ್ತುಹೋನಬ.
ಮೆಹೋಲಕ್ಕುಬೆಂಡ ಅಬೆಂಶಗಳಬಲಲ್ಲೂವೊ ಸತಧ್ಯವತಾಗಿರರುತತ್ತುವಬ. ಗರುತಿರ್ಷಸಿದವರರು: ಎಲಟ್.ಟ.ಎಬೆಂ /ಮರುನಿಯಮಮ ಪದ್ರಮತಾಣಮತಾಡದವರರು ನನನ್ನ ಮರುಬೆಂದಬ ಪದ್ರಮತಾಣ ಮತಾಡರರುತತಾತ್ತುರಬ ಬಬಬೆಂಗಳಳೂರರು ತತಾ: 1/8/1985 ಸತಾಕಕ್ಷಿ; ಎನಟ್.ವಬಬೆಂಕಟಸತಾಸ್ವಾಮಿ 38 O.S.NO.156/2010
46. From perusal this affidavit it is very clear that, the plaintiff himself has formed the sites in the Sy.No.69/1 of Banasawadi village, but as the revenue documents were in the name of the Muniyamma, GPA was executed in the name of Muniyamma and even affidavit is also though in his name, but as the revenue documents were in the name of Muniyamma he got notarized by affixing the LTM of Muniyamma and signed as witness. Otherwise he would have lodged police complaint against the Nanjundegowda and Sathyanarayana and others for creating/fabricating the documents, when the properties have sold on the basis of the fabricated/created documents no prudent man will keep quiet if his property is sold by a third party by forging signature of concerned. That apart though the plaintiff has made allegation of inducement, fabrication etc., no evidence has been lead by the plaintiff in this regard. And very import aspect is that he never stepped into the witness box, may be to avoid the truth or not to reveal the true facts before the court. From appreciation of the evidence it is clear that the GPA and affidavit are not fabricated. 39
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47. From conjoint reading of the GPA and Affidavit i.e., EX.D.11 and 12, it makes clear that the possession of the property is handed over to the M.B.Nanjudegowda under the Ex.D.11 and 12 which is nothing but GPA coupled with interest, because the possession of the property has been delivered after accepting the consideration amount.
48. The very contention of the plaintiff is that, the sale deed i.e., Ex.P.2 has been executed by the M.B.Nanjudegowda after the death of Smt Muniyamma and hence the said sale is not valid one as the Muniyamma died on 16/2/1992. In this regard I would like to extract the section 202 of Indian contract, Sec.202. Termination of agency, where agent has an interest in subject matter.
Where the agent has himself an interest in the property which form the subject matter of the agency, the agency cannot, in the absence of 40 O.S.NO.156/2010 an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land and to pay himself, out of the proceeds, debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) ......x x x x x......
And further I would like to rely upon the decision rendered by the Hon'ble High court of Karnataka dated 14/7/2020 in MFA 22850/2013, in the case of MEENAXI & others V/s PANDURANG BHIMRAO LAXMESHWAR since dead by LR's, wherein the said decision at Para No.20, 41 O.S.NO.156/2010 " as per the said provision, if the agency is coupled with interest, it is irrevocable. From the reading of the illustration (a) it is clear, that if the authority is coupled with interest, principal cannot revoke the authority nor it can be terminated by insanity or death. Therefore even after the death of the principal, the agent can act on the basis of the said authority. Therefore the general power of attorney executed in favor of P.B.Laxmeshwar dated 27/12/1984 as per Ex.P.23 read along with EX.P.22 is irrevocable power of attorney as it is coupled with interest"
And another decision rendered by the Hon'ble High court of Delhi in R.F.A.358/2000, in Shri Ramesh chand v/s suresh chand and another, dated 9/4/2012, wherein at para 4 of the judgment it has been 42 O.S.NO.156/2010 held that, " There is also one other aspect which needs to be clarified before proceedings ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this contained in illustration given to section 202 of the contract Act, 1872, and the said provision with its illustration reads as under;-.... Section.202.....and ..... illustrations.......
The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is 43 O.S.NO.156/2010 not a regular or a routine power of attorney but the same had elements of commercial transaction which cannot be allowed to frustrated on account of death of executant of the power of attorney.
As per Sec 202 of Contract, it very much clear that the GPA coupled with interest will be operation even after the death of the principal.
And another important decision is decision rendered by the Hon'ble High Court of Delhi in R.F.A.648/2006, dated 18/5/2012, in the case of Hardip Kaur Vs Kailash and Another. In the said decision the Hon'ble High Court has held in para 25,26, & 27 as under;-
25. False claims and defenses are really serious problems with real estate 44 O.S.NO.156/2010 litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. It is a matter of common experience that court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases.
26. It is the duty of the courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs of all these years long litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in 45 O.S.NO.156/2010 controlling the tendency of filing false cases.
27. Conclusion: On consideration of totality of the facts and circumstances of this case, I do not find any infirmity in the well reasoned impugned judgment. The plaintiff has misused the process of law by raising a false claim. The plaintiff has no respect for truth and has made false statements on oath. The plaintiff has shamelessly resorted to falsehood and has attempted to pollute the pure fountain of justice with tainted hands and, therefore, the plaintiff is not entitled to any relief. This case is squarely covered by the above mentioned judgments and warrants prosecution as well as imposition of penal costs on the plaintiff. However, considering that the courts are already overburdened, directing prosecution of the plaintiff would 46 O.S.NO.156/2010 further burden the system. This appeal is consequently dismissed with costs of Rs.2,00,000/- on the appellant. The cost be paid by the appellant to the respondents within four weeks".
48. From reading the above authorities read with section 202 of Contract, it very much clear that the GPA coupled with interest will be in operation even after the death of the principal. Herein in this case, the suit property has been sold by the GPA holder by exercising the power granted to him under the Ex.D.11, in which it is specifically stated that agent can is authorized to sell the property covered under it and stamp duty issue has been corrected by paying the duty on penalty. Under these circumstances I am of the opinion that, when the title of the suit property has been validly transferred to the defendant through the procedure known to the law and when the title not vested with the plaintiff, it can be safely held that the plaintiff has failed to prove the Issue No.1, hence issue No.1 is held in 47 O.S.NO.156/2010 Negative.
49. ISSUE NO.2: In this issue it is wrongly mentioned as, "the husband of the plaintiff", actually it should have been "husband of the defendant" was in permissive possession of the suit schedule property. But both the parties have understood that it is the husband of the defendant hence by treating it as "Whether the plaintiff proves that the husband of the defendant was in permissive possession of the suit schedule property?". Plaintiff never stated that the husband of the defendant was in permissive possession of the suit schedule property. It is the definite case of the plaintiff that, Sathyanarayana and Nanjundegowa (husband of the defendant) and others offered to assist Muniyamma in de- notify the land and in this regard the persons related to Sathyanarayan and Nanjundegowda were allowed to reside in the suit property by making temporary shed in the suit property. In para No.9 of the plaint it is clearly mentioned that " the plaintiffs submits that claims and objections were also filed before the land acquisition officer by the persons 48 O.S.NO.156/2010 related to Sathyanarayana and Nanjundegowda claiming to be residing in the said property having purchased the same, likewise certain persons were made to reside on the property. The late Muniyamma was informed that they were residing in the property for consumption of the land acquisition officer and promised that they would vacate the property after the formalities of the acquisition were completed. Believing the false promise and assurance representation made late Muniyamma permitted them to occupy the property. One among the said person is the defendant herein who is the wife of M.B.Nanjundegowda". From going through this paragraphs it is very much clear that, plaintiff never stated that the husband of the defendant Nanjundegowda was in permissive possession and moreover when the plaintiff is not able to prove the title over the suit property the issue No.2 is answered in Negative.
50. ISSUE NO.3: This question arise only when the plaintiff is able to prove the ownership over the suit schedule property. The issue with regard to ownership of the 49 O.S.NO.156/2010 suit property has been elaborately discussed by this court while answering issue No.1 and this court after elaborate discussion has come to the conclusion that the plaintiff is failed to establish the ownership over the suit schedule property. When the plaintiff has failed to establish the ownership over the suit property definitely the sale deed executed by the Nanjundegowda in favour of defendant on 23-03-2008 has validly transferred the right. Hence this issue is answered in Negative.
51. ISSUE NO.4: When this court while answering the issue No.1 has held that the plaintiff has failed to prove that he is the absolute owner of the suit property and while answering the issue No.3 that the sale deed dated 23-03- 2008 is valid one, certainly plaintiff is not entitle for recovery of possession, hence issue No.4 is also held in Negative.
52. ISSUE NO.5: Issue No.5 has been answered in affirmative by this court while passing orders on I.A.No.5 on 20-12-2018, hence now it is not survived for consideration. 50
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53. ISSUE NO.6: This suit is filed by the plaintiff claiming that he is the son of one late Smt.Muniyamma for the relief of declaration to declare the sale deed dated 23- 03-1998 is null and void and for possession and to declare him as the absolute owner of the suit property. From the pleading it is very much clear that, the plaintiff is challenging the sale deed and claims the possession on the basis of title, under this situation Article 65 of the Limitation Act which governs the suit of the plaintiff which reads as under;
Description of suit Period of limitation Time from which period begins to run
65. For possession of Twelve years When the possession immovable property or any of the defendant interest therein based on becomes adverse to title. the plaintiff.
Explanation. For the purposes of this article
(a) XXX
(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become 51 O.S.NO.156/2010 adverse only when the female dies;
(c) XXX
54. Here the suit is filed on 06-01-2010 and said Muniyamma died on 16-09-1992. Suppose if the contention of the plaintiff is to be accepted then the suit for possession should have been filed within 12 years from the date of death of Muniyamma on 16-09-1992, because the plaintiff himself has stated that there was notification on 26-07-1984 for acquiring the Sy.No. 69/1 it means that the possession has also handed over during the said period. When the suit for possession is not within 12 years from the date of death of Muniyamma certainly the suit is barred by limitation. Hence it is held in Negative.
55. The L/c for plaintiff during the course of the argument has relied upon several decisions and same have been produced along with memo.
2014 (1) KCCR 676, in the case of Wajid Pasha Vs The 52 O.S.NO.156/2010 Chairman, BDA & Others. I have gone through the said decision, in the said decision a writ has been filed by the power of attorney holder and agreement holder after the death of the executant. Under the said circumstances right to file writ petition was considered by the court and it is held that, he has no right to file the writ petition to challenge the BDA acquisition. In my humble opinion in view of the latest decision by the Hon'ble High Court of Karnataka in MFA No.22850/2013 the said decision is not applicable to the case on hand, since it is categorically held that, the power is vested with the agent under Section 202 of Contract Act is irrevocable even after the death of the principal when the same is coupled with interest.
And another decision reported in AIR 2007 Rajasthan 166 this also in the same line that the sale deed executed by the power of attorney holder after the death of the principal. But as already noted in this case the sale deed has been executed by the power of attorney holder whose interest is created under Section 202 of Contract Act. In 53 O.S.NO.156/2010 view of the latest decision of our Hon'ble High Court, this decision is not applicable to the case on hand.
And another decision reported in Laws Karnataka 2017 3 31 in the case of Chikka Venkatamma Vs R.Nagaraja. In that case it is held that in the absence of registered and duly stamped document no title will pass on to the purchaser but the said decision is not applicable to the case on hand for the simple reason that the power of attorney holder has executed registered sale deed by exercising the power conferred under irrevocable power of attorney, hence the same is not applicable to the case on hand.
And another decision reported in AIR 2011 Karnataka
1. This decision is rendered under Section 34 and Article 41(ea) and Article 20 of the Stamp act but in my humble opinion the stamp duty issued has been sorted out by the parties by paying duty and penalty in this case.
And another decision reported in AIR 1972 Mysore 54 O.S.NO.156/2010
263. It is in respect to construction of document but in the particular case the original owner Muniyamma has executed GPA coupled with interest after accepting the consideration amount and the said power of attorney is irrevocable GPA coupled with interest and on the basis of the said power of attorney sale deed has been executed. Hence the same is not applicable to the facts on hand.
Likewise another decision ILR 2015 Karnataka 1984 it is with respect to imposition and impounding of document but imposition and collection of duty has been sorted out in this case.
And another decision reported in ILR 2010 Karnataka 2204 in Sri.Anantswami Vs Smt.Radha Srinath and Another. It is with respect of the construction of the document. As already noted the original owner Muniyamma has executed GPA coupled with interest and on the basis of GPA duly registered sale deed has been executed in favour of defendant, hence present decision also not applicable to the 55 O.S.NO.156/2010 case on hand.
And another decision reported in AIR 1952 SCC 153. It is relied upon by the plaintiff stating that, the document itself creating interest in immovable property needs registration but GPA executed by Muniyamma in favour of Nanjunde Gowda or Sathyanarayan is does not required registration since same is required to be executed before the notary and same is duly performed. Hence the same is not applicable to the case on hand.
And another decision rendered by Hon'ble High Court of Karnataka in W.P.No.6238/2011 in Sri.V.R.Ramesh Vs M.P.Babuprasad. I have carefully gone through the said decision, in the said decision the order passed by the trial court was challenged wherein the trial court was ordered to pay duty and penalty of power of attorney, affidavit and agreement of sale and the said decision also not applicable to the case on hand.
56
O.S.NO.156/2010 And another decision reported in AIR 1994 Karnataka
133. It is in respect of irrevocable power of attorney. Wherein it is held that, Terms not disclosing creating of agency coupled with interest in favour of agent - mere use of word irrevocable does not make the power of attorney irrevocable but the facts on hand is entirely different because in the GPA executed by Muniyamma it is specifically stated that will not canceled the GPA and in the affidavit it is clearly mentioned that, the interest has been created in favour of the agent. Under these circumstances the said decision also not applicable to the case on hand.
And another decision reported in 1992 SCC (2) 524. This is in respect of Order 1 Rule 10 of CPC because the other side has taken a contention that, the Nanjunde Gowda and Sathyanarayana and Others against whom the plaintiff has made allegation of fraud is not made as parties to overcome the said contention the present citation has been relied upon. But in my humble opinion, the said decision is not helpful to the plaintiff for the simple reason when there 57 O.S.NO.156/2010 is clear cut allegation is made against the Nanjunde Gowda and Sathyanarayana definitely they should have been made parties in the suit because they only have sold the property to the defendant by exercising power conferred under GPA. Hence the said decision is not helpful to the plaintiff.
And another decision in ILR 2003 Karnataka 3268 it is in respect of Section 61 of Karnataka Land Reforms Act. In that decision it is held what one cannot do directly on account of prohibition in law cannot be done indirectly but the said decision also not applicable to the case on hand, for the simple reason Muniyamma herself has executed GPA coupled with interest and on the basis of said GPA sale deed has been executed. Hence the said decision is not applicable to the case on hand.
And finally decision reported in 2006 (3) KCCR 1889, but said decision is not applicable to the case on hand, in view of Transfer of Right through a valid registered sale deed.
58
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56. The defendant have relied upon the decision rendered by the Hon'ble Supreme Court in Manu/SC/0093/2002 in Shamrao Suryavanshi and Others Vs Pralhad Bhairoba Suryavanshi by LR's and Others. It is in respect of Section 53A of Performance of Contract Act. The said decision not applicable to the case on hand.
And another decision reported in AIR 1969 SCC 73 in Seth Loon Karan Sethiya Vs Ivan E. John and Others. It is in respect of the power of attorney By considering Section 202 of Contract Act, hence the same is helpful to the defendant.
Another decision reported in (2012) 1 SCC 656 in Suraj Lamp and Industries private limited Vs State of Haryana and Another. Wherein Supreme Court has elaborately dealt with transaction of GPA, affidavit, will etc., in the said decision at para No. 27 it is held that, " We make it clear that out observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example; a person 59 O.S.NO.156/2010 may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several states, the execution of such development agreement and power of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding SA/ GPA/ WILL transaction are not intended to apply to such bonafide/ genuine transactions". the said decision also helpful to the defendant.
57 . ISSUE NO.7:- In view of my findings on the above issues, I proceed to pass the following:- 60
O.S.NO.156/2010 ORDER Suit of the plaintiff is dismissed with cost. Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 31st day of March, 2021.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE All that piece and parcel of the property bearing site No.44, house list khatha No.554/44, measuring East to West 40 feet and North to South 30 feet in all totally measuring 1200 sq.ft., situated at Banasawadi Dhakle, Chennasandra village, Krishnarajapura Hobli, Bangalore East Taluk and bounded on the:-
East by: 20 feet road West by: Gangareddy property North by: Site No.43 South by: Site No.45 ANNEXURE I. List of witnesses examined on behalf of: 61
O.S.NO.156/2010
(a)Plaintiff' side :
P.W.1: Mr.Nataraja
(b)Defendant's side : D.W.1: M.B.Nanjundegowda D.W.2: Mr.B.Krishnegowda II. List of documents exhibited on behalf of :
(a)Plaintiff' side :
Ex.P.1: GPA dated 13-03-2013
Ex.P.2: Certified copy of the sale deed dated
23-03-1998
Ex.P.3: Record of rights for the year 2009-10
Ex.P.4: Copy of mutation register
Ex.P.5: Death certificate of Muniyamma
Ex.P.6: Copy of the legal notice dated
18-11-2009
Ex.P.7 Postal receipts
& 8:
Ex.P.9: Acknowledgment
Ex.P.10 Returned postal envelop
Ex.P.11 Certified copy of the chief examination affidavit of Nanjundegowda in O.S.No.483/2010 marked during the cross examination Ex.P.12 Certified copy of the chief examination 62 O.S.NO.156/2010 affidavit of Nanjundegowda in O.S.No.6436/2004 marked during the cross examination Ex.P.13 Certified copy of the affidavit dated 01-08-1985 marked during cross examination Ex.P.14 Certified copy of the GPA dated 01-08-
1985 marked during cross
examination
Ex.P.15 Certified copy of the sale deed dated 23-03-1998 marked during cross examination
(b) Defendants side :
Ex.D.1 Tax paid receipts
to 3:
Ex.D.4: BWSSB application
Ex.D.5: Bescom application
Ex.D.6: BWSSB bill
Ex.D.7 Photographs
to 9:
Ex.D.10: CD
Ex.D.11: Certified copy of the GPA dated
01-08-1985
Ex.D.12: Certified copy of the sale deed dated
10-08-1992
Ex.D.13 Certified copy of the affidavit
Ex.D.14 Certified copy of the judgment and
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O.S.NO.156/2010
decree passed in O.S.No.6436/2004
Ex.D.15 Office copy of the legal notice dated 30-11-2009 Ex.D.16 Returned RPAD cover Ex.D.16 Content of RPAD
(a) Ex.D.17 Bescom bills & 18 Ex.D.19 GPA dated 25-02-2019 Ex.D.20 Certified copy of the affidavit dated 01-08-1985 XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.