Bangalore District Court
Ramamurthy S/O. Late vs B.L.Nagendraprasad on 3 July, 2021
1
O S No.10287/2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-18)
Dated this the 03rd day of July, 2021.
::Present::
Sri. Dinesh Hegde, B.A., LL.B.,
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
O S No.10287/2015
PLAINTIFFS :: 1. Ramamurthy S/o. Late
Doddabyrappa, aged about 53
years,
2. Anandamurthy, S/o. Late.
Doddabyrappa, aged about 48
years,
3. Smt. Lakshmamma, W/o. Late.
Doddabyrappa, Aged about 70
years,
All are residing at Sampigehalli,
Yalahanka Hobli, Bangalore North
Taluk, Bangalore-560 064
(By Sri. R.Shyama, Advocate)
V/s.
DEFENDANTS :: 1. B.L.Nagendraprasad, S/o. Late.
CVL Shastry, Residing at No.29/A,
9th Cross, RMV Extension,
Bangalore-560 080
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O S No.10287/2015
2. H.A.Somashekar, S/o. Late.
H.C.Anjinappa, aged about 38
years, C/o. Kumar, residing at
No.10B, N. Pura, K.R.Puram Hobli,
Bangalore East Taluk, Bangalore.
(By Sri. P.M.Narayana Swamy,Advocate)
Date of Institution of the Suit :: 16-12-2015
Nature of the Suit :: Declaration &
Injunction
Date of commencement of
recording of evidence :: 12-01-2018
Date on which the Judgment
pronounced. :: 03-07-2021
Year/s Month/s Day/s
Total Duration :: 05 06 18
(Dinesh Hegde),
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGEMENT
The plaintiffs have filed this suit for declaration of title and permanent injunction.
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O S No.10287/2015
2. The facts of the case nutshell:-
The property bearing Sy.No.9/3C of Sampigehalli Village, Yelahanka Hobli, Bangalore North Taluk, measuring 1 acre 1 gunta was belonging to the family of Doddabyrappa, resident of Sampigehalli Village. After his death, it was was mutated into the name of his wife Smt. Lakshmamma, the 3rd plaintiff herein. Though the deceased Doddabyrappa had two sons and a daughter, the revenue documents were standing in the name of his wife Smt. Lakshmamma. But all the children of late Doddabyrappa have got equal rights and title. Sri.Doddabyrappa had acquired said property in a court partition amongst his brothers in O S No.4054/1991.
3. This property was subject matter of acquisition by the Government of Karnataka to form residential layout called as "Arkavathy Layout", by 4 O S No.10287/2015 Bangalore Development Authority. The defendant No.1, who came forward to meddle with the acquisition process and get the property released from the Acquisition. The plaintiffs already filed their objection to the acquisition process. The 1 st defendant assured the plaintiffs that he will save the land and get half of the land for which he is going to pay the nominal amount. Accordingly, an unregistered GPA was executed in favour of the 1 st defendant in respect of the notified land. As a matter of convenience, a nominal formal agreement was also made. Though such arrangements were opposed to public policy and void ab-initio, in order to convince the plaintiffs, the 1st defendant had emancipated such an idea. Earlier one Narayanaswamy made similar attempt and he too could not achieve the objectives as the GPA and agreements but it is not permissible. 5
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4. First defendant, instead of informing the progress of the process, clandestinely entered into a sale transaction with one M/s.Indocon Micro Engineers Ltd. and the said company also reclined from the transaction saying that the GPA transaction is illegal and not enforceable. After knowing the said act of defendant No.1 with M/s. Indocon, the plaintiffs protested the acts of the 1st defendant and asked him to return GPA and Agreement by expressing their intention to return the money. Then the 1st defendant tendered his apology and agreed that he is not going to act upon the said GPA and he is ready to take back his amount as he cannot do anything in BDA, with the existing rules. The plaintiffs also agreed to return the amount of Rs.29,10,000/- which they received against the said GPA and Agreement. In the meantime, the Government through the BDA itself introduced the scheme of sharing the developed area against the 6 O S No.10287/2015 acquired land. While the scheme of sharing developed area was introduced in one hand and in the same time the schedule property was dropped from the acquisition process. The schedule property released from the acquisition process and the other properties of the plaintiffs, though mentioned in the GPA become the subject matter of sharing developed area. The plaintiffs have applied for the developed land in respect of other properties. BDA by considering objections filed by the plaintiffs and the location of the land, dropped the property bearing Sy.No.9/3C from acquisition. The plaintiffs continued to be in possession and enjoyment of the schedule property and they have not parted with the same even against the GPA and other documents to anybody. Now, the possession of the plaintiffs is under threat from the defendant No.2. Therefore, an injunctive relief is required to be passed to preserve the plaintiffs possession over the schedule property. 7
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5. Since the 1st defendant did not come forward for receive the amount, the plaintiffs felt some gruesome as some people were claiming to be the brokers of the 1st defendant threatening to take over the possession of the plaintiffs. Shocked by such threat, on 05-09-2015 as a matter of precaution, the plaintiffs issued a notice to the 1 st defendant calling upon him not to use the GPA and Agreement and they are ready to return the money. The 1st defendant received the notice after 3 to 4 weeks, but got the mutation into the name of 2 nd defendant without issuing notice to the plaintiffs.
6. First defendant after receiving the notice neither replied nor contacted the plaintiffs. The un- responded attitude of the 1st defendant compelled the plaintiffs to know the status of the property. On 19-11-2015 the plaintiffs verified and applied for mutation. For their shock they came to know that an 8 O S No.10287/2015 order of mutation order was passed by the Tahasildar without their notice . The plaintiffs have challenged the mutation order in RA No.302/2015-16 before the Asst. Commissioner, Bangalore North, Bangalore.
7. Plaintiffs also applied for an encumbrance certificate of the schedule property. For their shock, it disclosed illegal transaction in the year 2014 June, a fake document of sale was registered by falsely representing the minor and the plaintiffs. The plaintiffs obtained a copy of the sale deed based on the encumbrance certificate and the same was registered in the Office of Senior Sub-Registrar, Malleshwaram, Bangalore. Ongoing through the sale deed, it was revealed that the defendant No.1 has represented for minor and affixed signature. The said document was created for grabbing the plaintiffs property. The defendant No.1 has intentionally with an oblique motive, has executed the document of 9 O S No.10287/2015 sale, acting on the illegal, unlawful, unenforceable and void ab-initio GPA. The said GPA is not only illegal and opposed to public policy but also such documents do not convey any valid title.
8. The sale transactions based on the GPA are void ab-initio. Accordingly the sale deed executed between the defendants is illegal, unjust and opposed to law. The 2 nd defendant is a benami purchaser of the defendant No.1. Therefore, the plaintiffs are seeking the relief of declaration and injunction.
9. The cause of action to this arose after 25-06-2014 and on 16-11-2015, when the defendant not responded to the notice and when they obtained the sale deed copy and mutation order. The property is in possession and enjoyment of the plaintiffs only. The defendants were never put in actual or symbolical possession. For the purpose of the 10 O S No.10287/2015 jurisdiction the subject matter is valued for Rupees two crores. Hence, the plaintiffs sought for a judgment and decree by declaring that the plaintiffs are absolute owners in possession of the suit schedule property, to declare that the sale deed dated 25-06-2014 executed by the 1 st defendant in favour of the 2nd defendant is void ab-initio, illegal and not binding on the plaintiffs and restrain the defendants from interfering to the possession and enjoyment of the suit schedule property permanently and award the costs of this suit.
10. After service of suit summons, the defendants appeared through their counsel and defendant No.2 filed written statement. Defendant No.1 adopted the written statement filed by the 2 nd defendant. In the written statement it is averred that the defendant No.2 is the sole and absolute owner of the agricultural land bearing Sy.No.9/C, measuring 1 11 O S No.10287/2015 acre 1 gunta situated at Sampigehalli Village, Yelahanka Hobli, Bangalore North Taluk, acquired under a registered sale deed dated 25-06-2014 for a valuable sale consideration. After purchase the defendant No.2 is in actual and physical possession of the said land by cultivating the same, and defendant has transferred revenue entries in his favour.
11. Doddabyrappa and Basappa have acquired this property under a registered sale deed dated: 01-02-1945 for a valuable sale consideration and there after it was vested with vendors of this defendant. From the date of purchase, 2 nd defendant vendors were in peaceful possession and enjoyment of the same by transferring revenue entries like RTC and Mutation Register Extract in his favour vide MR No.8/2004-05. second defendant's vendor Smt. Lakshmamma and others have executed a General 12 O S No.10287/2015 Power of Attorney dated 15-02-2015 in favour of B.L.Nagendra Prasad who is the defendant No.1 herein, in respect of land bearing Sy.No.9/3C, measuring 1 acre 1 gunta, situated at Sampigehalli Village, Yelahanka Hobli, Bangalore North Taluk.
12. Plaintiff No.1 and Smt. Anusuya along with one B.H.Narayanaswamy have executed an agreement of sale dated 05-12-2002 in favour of B.L.Nagendra Prasad in respect of the suit schedule property. The plaintiffs and others have executed Full Settlement Agreement dated 15-02-2005 in favour of the B.L.Nagendra Prasad after the receipt of entire sale consideration.
13. Bangalore Development Authority has issued a preliminary notification dated 03-02-2003 and also final notification dated 23-02-2004 for acquisition of the schedule property for formation of "Arkavathy Layout". It is further submits that 13 O S No.10287/2015 plaintiffs and others have filed a Writ Petition No.42876/889/2006& No.10705/2006 on the file of the Hon'ble High Court of Karnataka against the BDA and others, challenging the acquisition proceedings and also filed W.A. No.2624/2005 dated: 25-11-2005 W.P.No.9232/2006 dated: 23-08-2006 and also filed SLP(C) No.4318/2006 and CA No.4097/2010 dated:
05-05-2010, wherein the property in question has been acquired for the formation of "Arkavathy Layout" and challenging the acquisition made by the BDA and further to drop the acquisition proceedings initiated.
14. As per the Government Order dated 04-06-2010, the Government had issued a direction to conduct the re-inquiry and to drop the acquisition proceedings as per the law by taking into all material aspects into consideration and to pass the appropriate orders. The Special Land Acquisition 14 O S No.10287/2015 Officer has referred the matter with a recommendation in respect of the land bearing Sy.No.9/3C, measuring 1 acre 1 gunta situated at Sampigehalli Village, Yelahanka Hobli, Bangalore North Taluk to exclude from the Notification and passed an order dated: 21-05-2012 and accordingly the Commissioner of BDA has passed the resolution in placing the matter before the Committee/Board to discuss the matter in BDA subject No.79/13 dated 12-02-2013 and same has been read, recorded and confirmed on 24-08-2013 wherein it is discussed in respect of property acquired for formation of "Arkavathy Layout" and to delete the same from the acquisition proceedings which includes Sy.No.9/3C of Sampigehalli Village. The BDA has issued an endorsement stating that the schedule property has been dropped from the acquisition proceedings which was acquired and the schedule property has been excluded from the notification. 15
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15. Further it is contended that the State Government of Karnataka passed an order to reconsider the acquisition proceedings as per the directions of the Hon'ble High Court of Karnataka and Hon'ble Supreme Court and same has been published in Gazette dated 03-04-2014. After reconsideration of the Arkavathy Layout acquisition proceedings, the Karnataka State Government modified the scheme of Arkavathy layout and modified the Government order dated: 21-02-2004 in respect of the land bearing Sy.No.9/3C of Sampigehalli Village and it has been excluded from the acquisition proceedings and the said re-modified scheme has been published in gazette on 18-06- 2014.
16. The revenue entires pertaining to the schedule property i.e., RTC and Mutation Register extract were standing in the name of plaintiffs for 16 O S No.10287/2015 the period 2014-15, though the defendant No.2 is in possession of the suit schedule property and transfer of revenue entries are under the process for consideration. After purchase of the said land the defendant No.2 also made a representation to the Tahasildar for transfer of revenue entries in his favour and same is pending consideration.
17. Further it is contended that the plaintiffs are colluding with each other have trying to interfere with the peaceful possession and enjoyment of the defendant No.2 property and to knock of the valuable property of the defendant No.2. The plaintiffs are not at all having any right, title, interest over the schedule property and have ceased from the ownership. The defendant No.2 is in peaceful possession and enjoyment of schedule property as an absolute owner. The plaintiffs are not in possession of the property after alienating the said 17 O S No.10287/2015 land they are ceased to be owners.
18. The plaintiffs absolutely have no right,title, interest, much less possession over the schedule property. The plaintiffs are trying to interfere with the peaceful possession and enjoyment of the defendant No.2 in respect of suit schedule property and also the plaintiffs are making attempts to alienate the suit schedule property in favour of third parties, by taking advantage of the revenue entries stands in their name, without there being any valid right, title, interest over the same.
19. Further it is contended that the plaintiffs by colluding each other are also making hectic efforts to dispossess the defendant No.2 and illegally trying to interfere with the peaceful possession. Hence, the defendant No.2 has filed the suit in O S NO.10166/2015 on the file of City Civil Judge at Bangalore, and the said suit is pending 18 O S No.10287/2015 consideration. The defendant No.2 has also spent lot of amount apart from paying entire sale consideration to the plaintiffs to get the marketable title to the schedule property.
20. The suit is liable to be dismissed for non- joinder and mis-joinder of proper and necessary parties to this suit. The suit is not properly disclosed the real facts and circumstances in respect of the schedule property. The plaintiffs are utter stranger to the property. The suit being filed on the false and fabricated documents in order to create some sort of right, interest in respect of the schedule property. Hence, the suit is liable to be dismissed for want of cause of action.
21. The suit has to be dismissed for want of proper court fee on the relief sought for in the prayer as declaration, declaring that the plaintiffs are the absolute owners of suit schedule property and 19 O S No.10287/2015 further ancillary relief of injunction against the defendants are not at all maintainable. The court fee paid on the plaint is insufficient. The plaintiffs have undervalued the suit and for want of proper Court Fee the plaint has to be rejected under Order VII Rule 11(b) of C.P.C. the suit has been filed only in order to gain unjust benefits and to extract money from the defendant No.2 and further in order to knock up the valuable property. The documents which are relied by the plaintiffs are being fabricated, forged and created documents. Hence, prayed for dismissal of the suit.
22. Based on the above pleadings, the following issues and additional issues were framed.
1. Whether the plaintiffs prove that the registered Sale Deed dated 25-06-2014 executed by the 1st defendant in favour of 2nd defendant is void ab-initio illegal and it is not binding over the suit schedule property ? 20
O S No.10287/2015
2. Whether the plaintiffs further prove that they are in lawful possession of suit schedule property ?
3. Whether the plaintiffs further prove the alleged interference caused by defendant No.1 & 2 over their peaceful possession and enjoyment of suit schedule property ?
4. Whether the suit is filed without cause of action ?
5. What order or decree ?
ADDITIONAL ISSUES:
1. Whether the plaintiffs prove that they are the absolute owners in possession of the suit schedule property ?
2. Whether the defendants prove that, defendant No.1 was validly appointed and authorized by the plaintiffs as a General Power of Attorney holder to executed the Sale Deed on their behalf dated: 25-06-2014 in favour of defendant No.2 ?
23. The plaintiff No.2 & 1 have been 21 O S No.10287/2015 examined as PW-1 & 2 respectively and marked documents at Ex.P-1 to P-10. Defendant No.2 is examined as DW-1 and marked documents at Ex.D-1 to 24.
24. Heard both sides arguments and perused the records.
25. My findings on the above issues are as follows:
ISSUE No.1 :: In the Negative
ISSUE No.2 :: In the Negative
ISSUE No.3 :: In the Negative
ISSUE No.4 :: In the Affirmative
ADDL.ISSUE No.1 :: In the Negative
ADDL.ISSUE No.2 :: In the Affirmative.
ISSUE No.5 :: As per final order for the following:-
REASONS
26. ISSUE NO.1, Addl. ISSUE NO.1, 2,:
These issues are taken up together for consideration 22 O S No.10287/2015 to avoid repetition of facts.
It is specific case of the plaintiffs that they are the absolute owners in possession of immovable property comprised in Sy.No.9/3C of Sampigehalli Village, Yelahanka Hobli, Bangalore North Taluk measuring 1 acre 1 gunta with specific boundaries acquired by succession. It is further case of the plaintiffs that a general Power of Attorney dated 15-02-2005 executed by them in favour of defendant No.1 authorizing him to sell the suit schedule property is not a valid power of attorney. It is further case of the plaintiffs that the sale deed executed by the defendant No.1 in favour of defendant No.2 on 25-06-2014 is null and void document. It is further case of the plaintiffs that the defendants are trying to interfere with their possession over the suit schedule property.
27. Case of the defendants that the plaintiffs 23 O S No.10287/2015 have validly appointed the defendant No.1 as their General Power of Attorney holder to execute the sale deed on their behalf and hence, the defendant No.1 being GPA holder executed valid sale deed in favour of defendant No.2 and he was put in possession of the suit schedule property as absolute owner.
28. To prove the case of the plaintiffs, the plaintiff No.2 is examined as PW-1 and plaintiff No.1 is examined as PW-2. Ex.P-1 to P-10 were marked.
Some of the admitted facts that plaintiffs No.1 & 2 are the two sons of deceased Doddabyrappa. Plaintiff No.3 is the wife of Doddabyrappa. Apart from the plaintiff No.1 & 2, Doddabyrappa had a daughter by name Manjulamma, However she is not made as a party to the suit.
29. Ex.P-10 is certified copy of the Sale Deed dated 01-02-1945 reveal that Doddabyrappa and Basappa both are the sons of Pillappa have 24 O S No.10287/2015 purchased three items of immovable properties from their vendors by name A.Venkobarao and Jyothoji Rao for consideration amount of Rs.300/-. Under this sale deed the property bearing Sy.No.9/1, 39 guntas, Sy.No.9/2, 1 acre 1 guntas and Sy.No.6/5 measuring 24 guntas were purchased by them. Sy.No.9/3 measuring 1 acre 1 gunta situated at Sampigehalli Village is the subject matter of the present suit. According to the plaintiffs, Doddabyrappa had acquired the plaint schedule property in a partition suit OS No.4054/1991. However, there is no dispute regarding the title of the plaint schedule property acquired by Doddabyrappa.
30. According to the plaintiffs, upon the death of Doddabyrappa, the plaint schedule property devolved upon them by succession. But the revenue records were changed into the name of wife of Doddabyrappa only. Ex.P-6 is the tax paid receipt 25 O S No.10287/2015 dated 16-09-2002 shows that the property tax was paid to the concerned revenue authority in the name of Doddabyrappa. Ex.P-7 is also a tax paid receipt dated 18-12-2004 reveal that property tax was paid in the name of Smt. Lakshmamma W/o. Dodda Byrappa.
31. Ex.P-1 is the Family Genealogy reveal that the plaintiff No.1 to 3 and Smt. Manjulamma are the legal heirs of deceased Doddabyrappa. Ex.P-8 is a notice dated 12-08-2010 reveal that as per the orders of the Hon'ble High Court of Karnataka in W.P. No. 9232/2006, W.A.No. 2624-25/2005 and the Orders of the Hon'ble Supreme Court in SLP No.1497/2010, the Spl. Land Acquisition Officer fixed a date for spot inspection of the land bearing Sy.No.9/3C situated at Sampigehalli Village, and this notice was sent to plaintiff No.3.
32. Ex.P-5 is encumbrance certificate reveal 26 O S No.10287/2015 that one of the item covered under the General Power of Attorney was alienated by Muniyamma and Rajanna represented by their GPA holder Nagendra Prasad in favour of R.Nanjappa S/o. Late. S.K.Ramaiah. Ex.P-9 is the paper publication dated 01-05-2016 shows that the plaintiffs issued a notice to general public stating that they are the owners of property in Sy.No.9/3C of Sampigehalli, Arkavathy Layout and they have not conveyed or executed any sale deed to anybody as required under law or otherwise.
33. Ex.P-4 is the certified copy of a Sale Deed dated 25-06-2014 reveal that the plaintiffs No.1 to 3 herein along with Smt. Anasuyamma W/o. Sri. Ramamurthy, Master Vishal, Minor represented by Smt. Anasuyamma and Smt. Lalitha W/o. Sri. Anandamurthy all of them are represented by their General Power of Attorney holder Sri. B.L.Nagendra 27 O S No.10287/2015 Prasad as vendors have executed a registered sale deed in favour of H.A.Somashekar who is none other than the defendant No.2 herein. In the sale deed the sale consideration amount is shown as Rs.40,00,000/- paid to the confirming party i.e., the GPA holder defendant No.1.
34. Based on the Sale Deed the revenue records with respect of the suit schedule properties changed into the name of the defendant No.2 H.A.Somashekar S/o. Late.H.C.Anjinappa as reflected in the RTC extract marked at Ex.P-2. In column No.11 of the RTC it is mentioned this property was deleted from land acquisition proceedings as per final notification. Ex.P-3 is copy of a letter reveal that the plaintiffs filed a objection for conversion of land in Sy.No.9/3c of Sampigehalli Village, Yelahanka Hobli.
35. It is pertinent to note in para No.4 of the plaint the plaintiffs have admitted that they 28 O S No.10287/2015 executed a unregistered General Power of Attorney in favour of 1st defendant in respect of the notified lands. They have also admitted that they executed a formal agreement in his favour. In para No.5 of the plaint they admitted that the 1st defendant had paid a sum of Rs.29,10,000/- to them in response to the execution of General Power of Attorney and Agreement. According to the plaintiffs they agreed to return the amount of Rs.29,10,000/- to the 1 st defendant but he did not receive. It is further stated that the Government have dropped the plaint schedule property from land acquisition process.
36. To rebut the documentary evidence produced by the plaintiffs, the defendants have relied upon Ex.D-1 to D-24. The defendant No.2, who is the purchaser of the suit schedule property entered into the witness box and examined as DW-1. Ex.D-15 is the original unregistered General Power of 29 O S No.10287/2015 Attorney dated 15-02-2005 reveal that the plaintiffs have executed this Power of Attorney in favour of B.L.Nagendra Prasad, who is the defendant No.1 herein. Under the power of attorney in Para No.5 it is mentioned as follows;
"5. Our attorney is authorized to sell the sites so formed to the prospective purchaser either whole or individual site by fixing the sale consideration. For the purpose, our attorney name entered into an agreement for sale for sell the sites directly to the prospective purchasers by executing and registering the sale deed on our behalf. For the purpose of registration, our attorney is authorized to sign , present the sale deed of the sites to be formed in the schedule property, to admit the execution of the sale deed, to receive the sale consideration from the purchasers and to do all other acts which are necessary for the effective registration of all sale deeds."
37. In para No.10 of the General Power of Attorney it is mentioned as follows; 30
O S No.10287/2015 "10. Our attorney is hereby authorized to sell the sites to be allotted by the Bangalore Development Authority under the incentive scheme of the B.D.A. and to appropriate the sale consideration by them as we have received the entire sale consideration from our attorney in respect of it, a separate receipt was executed."
38. On perusal of the above recital of Ex.D-15 and also the plaint averment in para No.4 & 5 that the plaintiffs admitted the execution of unregistered General Power of Attorney, Agreement of Sale in favour of defendant no.1 and payment of consideration amount of Rs.29,10,000/- to them. On perusal of the unregistered General Power of Attorney, a certificate issued by the Deputy Commissioner of Stamps and District Registrar, Gandhi Nagara, Bangalore reveal that this document was presented before him for levying duty and penalty since the General Power of Attorney is 31 O S No.10287/2015 coupled with right to alienate the immovable property. Accordingly, the Deputy Commissioner of Stamps and District Registrar imposed a duty of Rs.1,55,200/- and penalty of Rs.800/- totally Rs.1,56,000/-. This amount was paid by the person who presented it for imposing duty and penalty and the Deputy Commissioner of Stamps issued a certificate under Section 41 of the Karnataka Stamps Act, 1957 stating that the deficit stamp duty has been recovered and credited to the bank vide proper receipts. Therefore, proper duty has been paid on the unregistered General Power of Attorney.
39. It is the contention of the learned advocate appearing for the plaintiffs that the General Power of Attorney is not a valid document for want of registration under Section 17 of the Indian Registration Act.
40. Under Section 17(1)(b) of the Registration 32 O S No.10287/2015 Act, 1908 other non testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of One hundred rupees and upwards, to or in immovable property shall be registered.
41. Under Section 49 of the Registration Act, 1908 no document required by Section 17 to be registered shall affect any immovable property comprised therein or confer any power to adopt, be received as evidence of any transaction unless it has been registered. Provided that, an unregistered document affecting immovable property and required by his act, or the transfer of property act, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1887 or as evidence of any collateral transaction not required to 33 O S No.10287/2015 be effected by registered instrument.
42. Ex.D-12 is the proceedings of the Special Land Acquisition Officer, Bangalore Development Authority dated 21-05-2012 reveal that the land comprised in Sy.No.9/3C measuring 1 acre 1 guntas have been dropped from land acquisition based on the orders of the Hon'ble High Court of Karnataka and the Hon'ble Supreme Court in Writ Petition No., Writ Appeal, and Spl. Leave Petition.
43. Ex.D-11 is an endorsement issued by the Commissioner of Bangalore Development Authority reveal that the land comprised in Sy.No.9/3C of Sampigehalli Village was dropped from acquisition. Ex.D-10 is the final notification dated 18-06-2014 issued by the Urban Development Secretariat published in the Karnataka Official Gazette. So it is clear that suit schedule property was not included in the final notification of the land acquisition. 34
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44. Ex.D-1 is the certified copy of the sale deed dated 25-06-2014 executed by the GPA holder of the plaintiffs i.e., the defendant No.1 in favour of the defendant No.2. This document is already produced by the plaintiffs at Ex.P-4 as discussed above. Ex.D-2 is the RTC extract reveal that earlier it was standing in the name of plaintiff No.3 subsequently, the revenue records were mutated into the name of defendant No.2 H.A.Somashekar as per the mutation order marked at Ex.D-6. Based on the mutation order the revenue records i.e., RTC changed into the name of defendant No.2 as reflected in Ex.D-4 & 5.
45. Ex.D-13 and Ex.D-14 are also the revenue documents reveal the name of 2 nd defendant. Ex.D-7 to D-9 are the certified copy of the order sheet in O S No.10166/2015, plaint copy and the interim application filed under Order XXXIX Rule 1 & 2 of 35 O S No.10287/2015 CPC reveal that the defendant No.2 herein filed a suit for injunction against the plaintiffs. Ex.P-16 to P- 24 are the photographs and CD produced by defendant No.2 to show that he is in possession of the suit schedule property.
46. In support of his arguments, Learned advocate appearing for the defendants relied upon the following decisions:-
1. AIR 1979 Supreme Court 553 -
Between Syed Abdul Khader Vs. Rami Reddy and others, wherein the Hon'ble Supreme Court held that, "Power of Attorney not compulsorily registrable.
Donors of power who executed it known to Registrar. Non mention of that fact on deed does not invalidate it." However, the above decision rendered by the Hon'ble Supreme Court is prior to amendment of Section 17 of the Registration Act.
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2. In ILR 2007 KAR 339 - Between Aralappa Vs. Jagannath and others, wherein it was held that "in a suit for declaration of ownership on permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit. When the plaintiff is not in possession of a property on the date of suit, th relief of permanent is not an appropriate consequential relief. The declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of a property and does not seek relief of possession, a mere suit for declaration is not maintainable."
47. Coming to the cross-examination PW-1, he has stated an amount of Rs.29,60,000/- was paid to the plaintiffs in the form of goodwill by B.H.Narayanaswamy accordingly, the plaintiffs executed a document named as General Power of Attorney. The consideration amount was paid to him 37 O S No.10287/2015 and the plaintiff No.2 by way of cash of Rs.1,50,000/- and rest of the amount was paid through blank cheque. An amount of Rs.12,30,000/- was paid including the claim of the defendant No.1, himself and plaintiff No.2. He do not remember that on 15-02-2005 they executed another General Power of Attorney. He has further stated that defendant No.1 gave a cheque for Rs.29,10,000/- on 15-02-2005.
48. On 06-08-2018 advocate for plaintiffs filed Memo to discard the evidence of PW-1. Hence, the evidence of PW-1 was eschewed. The order sheet dated 13-12-2018 reveal that PW-1 was sufficiently cross-examined, but the order sheet dated 26-06-2018 reveal that case was posted for further cross-examination of PW-1. Therefore, it is clear that PW-1 has not tendered himself for further cross- examination. On the other hand, the plaintiff No.1 has been examined as PW-2.
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49. In his cross-examination PW-2 has stated that during the year 2002 the suit schedule property was notified for acquisition for the purpose of forming Arkavathy Layout. They did not challenge the acquisition of the schedule property. He knew Mr. B.H.Narayanaswamy, Proprietor of GNM Enterprises and he entered into an agreement of sale on 05-12-2002. He admitted that the plaintiffs entered into an Agreement of Sale for sale consideration amount of Rs.29,10,000/-. He has admitted that the plaintiffs executed General Power of Attorney in favour of 1st defendant for the purpose of formation of sites in the suit schedule property. The land bearing Sy.No.8/1 and Sy.No.8/4 were also included in the General Power of Attorney. The General Power of Attorney was executed in the year 2005. So, the cross-examination of PW-2 is clearly reveal that the plaintiffs have executed an unregistered General 39 O S No.10287/2015 Power of Attorney in favour of 1st defendant.
50. DW-1 in his cross-examination stated that OS No.10166/2015 filed by him against the plaintiffs for the relief of injunction was stayed under Section 10 of the Code of Civil Procedure. The Power of Attorney was marked with objection as Ex.D-15.
51. DW-2 is one of the witness, in his evidence stated the 2nd defendant is the absolute owner of the agricultural land bearing Sy.No.9/3C measuring 1 acre 1 guntas situated at Sampigehalli Village. He has further stated that the 2nd defendant is in peaceful possession and enjoyment of his property. In cross-examination he has stated that the photos marked Ex.D-16 to D-23 are the photos in which the property shown is comprised in Sy.No.9/3B, but he volunteered that it is in Sy.No.9/3C. He has admitted that property No.9/3B belongs to the defendant No.2. But he do not know 40 O S No.10287/2015 this property is situated adjacent to the plaint schedule property.
52. On perusal of the records it is clear that the plaintiffs have executed an unregistered Power of Attorney dated 15/02/2005 in favour of defendant No.1 authorizing him to alienate the suit schedule property. Based on the Power of Attorney the 1 st defendant executed a registered sale deed in favour of defendant No.2. Based on the registered Sale Deed the revenue records were changed into the name of defendant No.2.
53. Learned advocate for the plaintiffs contended that unregistered Power of Attorney is not admissible under Section 17 R/w. Sec. 49 of the Registration Act and hence, no title will pass upon the defendant No.2 on the basis of unregistered Power of Attorney.
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54. In (2012) 1 Supreme Court Cases 656 Between Suraj Lamp and Industries Pvt. Ltd., Vs. State of Haryana and another it was held that "immovable property and its conveyance. General Power of Attorney sales or sale agreement will transfer while testator is alive. Immovable property can be transferred only by a deed of conveyance duly stamped and registered as required by law. Explaining the nature and scope for an agreement of sale, power of attorney and living will, held GPA sales will transfers neither convey any title nor do the amount to transfer of or create interest in immovable property except to the limited extent of Section 53-A of the Transfer of Property Act. However, certain protections granted to general power of attorney transactions entered into, prior to the date of present judgment. The present judgment will not affect the validity of the sale agreements and powers of attorney executed in 42 O S No.10287/2015 genuine transactions. Illustrations of such genuine transactions given."
55. In para 26 of the above decision it was held that " we have merely drawn attention to and reiterated the well settled legal position that GPA transactions are not transfers or sales and that such transaction cannot be stated as complete transfers or conveyance. They can continued to be treated as continued as existing agreement of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The GPA may also be used to obtain specific performance or to defend possession under Section 53-A of the Transfer of Property Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by development authorities. We make it clear that the documents relating to general power of attorney transactions 43 O S No.10287/2015 have been accepted, acted upon by BDA or other Developmental Authorities or by the Municipal or Revenue Authorities to effect mutation, they need not be disturbed merely on account of this decision."
56. Ex.D-15 the General Power of Attorney was executed on 15-02-2005 by the plaintiffs in favour of the defendant No.1 authorizing him to alienate the suit schedule property. Based on the unregistered General Power of Attorney, the defendant No.1 alienated the entire suit schedule property in favour of the defendant No.2. It is not the case of the plaintiffs that they never executed general power of attorney in favour of the defendant No.1 nor it is their case that they have not received consideration amount of Rs.29,10,000/-. On the other hand, in the plaint itself they have categorically admitted that they executed unregistered General Power of Attorney in favour of 44 O S No.10287/2015 defendant No.1 and they received Rs.29,10,000/-. Admittedly, the General Power of Attorney was executed on 15-02-2005, but it is an unregistered general power of attorney.
57. The Hon'ble Apex Court delivered the above cited Judgment reported in (2012) 1 Supreme Court Cases 656 on 11-10-2011. But in the present suit the Ex.D.15 General Power of Attorney executed by the plaintiffs in favour of defendant No.1 was on 15-02-2005. So, it is clear that the unregistered General Power of Attorney executed by the plaintiffs in favour of defendant No.1 prior to pronouncement of the above cited decision. In the above decision the Hon'ble Supreme Court has held that, "if they are entered before this day, they may be relied upon to apply for regularization of allotment/leases by Development Authorities and such mutation need not be disturbed merely on account of the above 45 O S No.10287/2015 decision."
58. Therefore, the evidence on record reveal that based on the General Power of Attorney dated 15/02/2005, the defendant No.1 executed a registered sale deed in favour of defendant No.2 and the title of the suit schedule property vested with defendant No.2. Based on the sale deed the revenue records were changed into the name of defendant No.2. Therefore, the plaintiffs have failed to prove that the sale deed dated 25.06.2014, executed by the 1st defendant in favour of 2nd defendant is void ab-initio. They also failed to prove that they are the absolute owners of the suit schedule property. On the other hand, the defendant No.2 has proved that the plaintiffs have validly appointed the defendant No.1 as their power of attorney holder to execute the sale deed on their behalf. Hence, I answer the issue No.1, additional issue No.1 in the "Negative" and the 46 O S No.10287/2015 additional issue No.2 in the "Affirmative".
59. ISSUE No.2 to 4 : These issues are taken up together for consideration to avoid repetition of facts.
It is specific case of the plaintiffs that they are in possession of the suit schedule property and the defendants are interfering with their possession. On the other hand, it is the case of the defendant No.2 that he is in possession of the suit schedule property by virtue of the sale deed dated 25.06.2014. To prove the possession, the plaintiffs have not produced any documents. However, in the oral evidence, they contended that they are in possession of the suit schedule property. However, the R.T.C. extract produced by the plaintiff marked at Ex.P.2, itself reveal the name of the defendant No.2. The revenue records produced by the defendant No.2 marked at Ex.D.13 and D.14 reveal that revenue mutation has been effected in the name of 47 O S No.10287/2015 defendant No.2 and his name has been entered in the R.T.C. Ex.D.16 to D.23 are the photographs produced by defendant No.2, reveal the location and existence of the suit schedule property. According to the plaintiffs, these photos are reflecting the property comprised in Sy.No.9/2. However, the plaintiffs have not produced either revenue records or the photographs to show that they are in possession of the suit schedule property. The revenue records have got presumptive value under Section 133 of the Karnataka Land Revenue Act. Such presumption arising out of Section 133 of the Karnataka Land Revenue Act is rebuttable in nature. The plaintiffs have not adduced any evidence to rebut such presumption arising under Section 133 of Karnataka Land Revenue Act.
60. The recital of the sale deed of the defendant No.2 reveal that he was put in possession 48 O S No.10287/2015 of the suit schedule property. In page No.2 of the General Power of attorney marked at Ex.D.15, it is mentioned that owner of the property executed agreement and received the entire sale consideration from the attorney and under the Power of Attorney, the executants have delivered the possession of the schedule property to the Attorney.
61. Therefore, it is clear that the plaintiffs are not in possession of the suit schedule property. In spite of the same, they filed suit for declaration and injunction without seeking the relief of possession.
62. In (2008) 4 SCC 594 Between Anathula Sudhakar Vs. P.Buchi Reddy (Dead by LRs) and others it was held that, where the plaintiff's title is under a cloud and he does not have possession, held the remedy is suit for declaration and possession, with or 49 O S No.10287/2015 without consequential injunction - Where his title is not disputed or under a cloud but he is out of possession, held, the remedy is suit for possession with consequential injunction - Where there is mere interference with the plaintiff's lawful possession or there is threat of dispossession, held, the suit for injunction simpliciter would be sufficient.
63. The above decision is aptly applicable to the facts of this case. The plaintiff filed this suit for declaration and permanent injunction without seeking the relief of possession. The evidence on record reveal that the plaintiffs are out of possession of the suit schedule property. Under these circumstance, the plaintiffs have failed to prove that they are in possession of the suit schedule property. When they are not in possession of the suit schedule property and when the defendant No.2 was put in 50 O S No.10287/2015 possession of the suit schedule property, interference by the defendants over the suit schedule property does not arise. There is no cause of action to the plaintiffs to file the suit against the defendants. For the above reasons, I answer the issue No.2 to 4 in the "Negative".
64.Issue No.5: In view of my answer to Issue No.1 to 4 and additional issue No.1 and 2, I pass the following:
ORDER Suit of the plaintiffs is dismissed with the costs.
Draw decree accordingly.
(Dictated to the Typist directly on computer, then corrected and pronounced by me in the open Court on this the 03 rd day of July, 2021.) (Dinesh Hegde), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.51
O S No.10287/2015 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(a) PLAINTIFFS SIDE ::
PW-1 : Anandamurthy S.D.
PW-2 : Ramamurthy.S.D.
(B) DEFENDANTS SIDE ::
DW-1 : H.A.Somashekar
DW-2 : Muniraju
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(a) PLAINTIFFS SIDE :
Ex.P-1 : Genealogical Tree
Ex.P-2 : RTC extract pertaining to Sy.No.9
for the year 2014
Ex.P-3 : Requisition filed before D.C.
Bangalore Urban
Ex.P-4 : Certified copy of the Sale Deed
dated: 25-06-2014
Ex.P-5 : Encumbrance Certificate
Ex.P-6 & 7 : Two Tax paid receipts
Ex.P-8 : Notice dated: 12-08-2010 issued by
the Spl. LO, BDA
Ex.P-9 : Copy of Paper Publication dated:
01-05-2016
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Ex.P-10 : Document of endorsements and
certificates
(B) DEFENDANTS SIDE :
Ex.D-1 : Certified copy of the Sale Deed
dated: 25-06-2014
Ex.D-2 to 5: 4 RTC extracts
Ex.D-6 : Mutation Register extract
Ex.D-7 : Certified copy of order sheet in O S
No.10166/2015
Ex.D-8 & 9: 2 interlocutory applications in O S No.10166/2015 Ex.D-10 : Copy of Gazette Notification dated:
18-6-2013 Ex.D-11 : Copy of endorsement dated:
30-05-2013 Ex.D-12 : Copy of the order dated 21-05-2012 of the Spl. Land Acquisition Ex.D-13 : RTC extract Ex.D-14 : Mutation register extract Ex.D-15 : General Power of Attorney Ex.D-16 to : 8 Photographs Ex.D-23 Ex.D-24 : C.D. (Dinesh Hegde), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.