Bangalore District Court
Sri.M.Govindaswamy vs Smt.Vijayalakshmi on 13 July, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 13TH DAY OF JULY 2015
O.S.No.7820 /2012
Plaintiff:- Sri.M.Govindaswamy
s/o. late Lakshmana Pillai,
aged about 72 years,
No.262, 2nd 'A' Main,
Ajmalappa Layout,
Kacharakanahalli,
St.Thomas Town Post,
Bengaluru -560084.
(By Sri.G.Erri Swamy,
Advocate)
-VS-
Defendants:- 1. Smt.Vijayalakshmi,
w/o. Sri.K.Trilok
Kumar,
aged about 44 years,
No.261, 2nd 'A' Main,
Ajmalappa Layout,
Kacharakanahalli,
2 O.S.No.7820/2012
St.Thomas Town Post,
Bengaluru -560084.
2. Sri.M.Parthasarathi
s/o. late A.Manicka
Pillai,
aged about 51 years,
6/13, Gandhi Street,
Abith colony,
Saidapet,
Chennai-600015.
3. Sri.M.Gopu,
s/o. A.Mainickapillai,
aged about 41 years,
No.262, 2nd 'A' Main,
Ajmalappa Layout,
Kacharakanahalli,
St.Thomas Town Post,
Bengaluru -560084.
(Defts 2 and 3
bySri.B.S.Ujwal
Deft.1 by Sri.P.M.Gopi ,
Advocates)
Date of Institution of the suit : 05/11/2012
Nature of the suit : Declaration &
Consequential reliefs of
permanent injunction.
Date of commencement of
recording of the evidence : 29/01/2014
3 O.S.No.7820/2012
Date on which the Judgment was
pronounced : 13/07/2015
Total Duration Years Months Days
02 08 08
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This suit is filed by the plaintiff for declaration, consequential relief of permanent injunction and alternative relief for recovery of money against the defendants.
2. The case of the plaintiff is that the defendants 2 and 3 are brothers. The plaintiff was the absolute owner of residential immovable property being northern portion of site No.48, in assessment No.66/1, khatha No.538, Sl.No.124 situated at Kacharakanahalli, Kasaba Hobli, Bengaluru North Taluk, measuring East to West: 30 ft. and North to South: 29 ft. all measuring 870 Sq.ft. with a two portioned house having water and 4 O.S.No.7820/2012 electricity connection presently known as No.262, 2nd 'A' main, Anmalappa layout, Kacharakanahalli, St. Thomas Town Post, Bengaluru-84. The plaintiff purchased the said property from one Muninagappa through a Sale Deed dated.25.05.2006 as described in the schedule annexed to the plaint.
3. The 3rd defendant was already living in the suit schedule property since 1990. The plaintiff after purchasing the schedule property entrusted the possession of the suit schedule property to the 3rd defendant who is in continuous possession of the schedule property. The 2nd defendant was in look after for some property in Bengaluru. The 3rd defendant suggested the 2nd defendant to purchase the suit schedule property from the plaintiff. The plaintiff on 10.6.2009 entered into an Agreement of sale in respect of suit property for Rs.21,00,000/- with the 2nd defendant by receiving advance sale consideration of Rs.4,05,000/- from the 2nd defendant. The 2nd defendant has agreed to pay balance sale consideration of Rs.16, 95,000/- and 5 O.S.No.7820/2012 get the suit schedule property registered to his name. The matter of sale of the suit schedule property between plaintiff and 2nd defendant was pending for long time without conclusion. The 1st defendant had knowledge about the above pending sale transaction between the plaintiff and 2nd defendant and had approached the plaintiff through 3rd defendant and convinced the plaintiff to sell the suit property to her agreeing that she will refund or return Rs.4,05,000/- from the sale consideration and then take delivery of possession of the suit schedule property from the 3rd defendant. After Agreement of sale also the 3rd defendant continued in possession of the suit property, but for and on behalf of 2nd defendant. The 1st defendant has with-hold Rs.4,05,000/- from the sale consideration. The plaintiff had not received the full consideration from the 1st defendant. The plaintiff had trusted that the 1st defendant would pay Rs.4,05,000/- with-hold by her to the 2nd defendant -the Agreement holder and 1st defendant had persuaded the plaintiff 6 O.S.No.7820/2012 and believing that the 1st defendant would pay Rs.4,05,000/- to the 2nd defendant and will take delivery of possession of the suit schedule property from the 3rd defendant and had signed and registered the Sale Deed in respect of the suit schedule property on 16.12.2011 in favour of the 1st defendant although the plaintiff had not received the full sale consideration.
4. The plaintiff further submits that the 1st defendant after that had approached the 3rd defendant and informed him that she does not have Rs.4,05,000/- for being paid to the 2nd defendant. The money that she with hold at the time of execution and registration of the suit schedule property from out of the sale consideration paid to the plaintiff, to pay to the 2nd defendant and to get back the possession of the suit schedule property from the 3rd defendant, requested the 3rd defendant to continue in the possession of the schedule property on Lease basis so that Rs.4,05,000/- among with hold by her will be treated as Lease advance from 2nd defendant and the interest on Lease 7 O.S.No.7820/2012 advance will be adjusted for the rents payable and she will return the said amount of Rs.4,05,000/- to the 2nd defendant on the expiry of Lease time and on being vacated by the 3rd defendant. The 3rd defendant had conveyed the said matter to the 2nd defendant and that the 2nd defendant had agreed to it and sought for a written Agreement from the 1st defendant on the same lines.
5. The plaintiff came to know from the 3rd defendant that when the 3rd defendant was in the influence of drinks, the 1st defendant had very tactfully obtained the 3rd defendant's signature on some document with a pretext that the said document is the Lease Agreement in respect of the suit schedule property with terms narrated above. The 1st defendant had issued a legal notice to the 3rd defendant dated.19.5.2012. Accordingly the plaintiff, 2nd and 3rd defendants came to know that the 1st defendant taking advantage of the situation had deceitfully obtained the 3rd defendant's signature on a document 8 O.S.No.7820/2012 which is not reflecting the true intention of defendants. The 3rd defendant had sent a reply notice dated.06.06.2012 to the 1st defendant stating that the said document is not binding on him. The 2nd defendant is now pressurising for return or refund of Rs.4, 05,000/- the amount which he paid under an Agreement of sale of suit schedule property to the plaintiff and which amount the 1st defendant with hold from the plaintiff at the time of sale of the suit schedule property agreeing to pay to the 2nd defendant and take delivery of possession of the suit schedule property.
6. The plaintiff had contacted the 1st defendant and persuaded her for payment of Rs.4, 05,000/- as per the oral undertaking of the 1st defendant and the plaintiff and also requested the 1st defendant to withdraw her legal notice issued to the 3rd defendant. Despite of the best persuasions by the plaintiff, the 1st defendant had not kept up her oral undertaking and assurance and also not withdrawn her legal notice issued to 9 O.S.No.7820/2012 the 3rd defendant. The plaintiff had finally caused a legal notice dated.6.6.2012 on to the 1st defendant demanding Rs.4,05,000/-. The plaintiff did not receive any reply to his legal notice, but learnt from the 3rd defendant that the 1st defendant had filed a suit in S.C.1055/2012 against the 3rd defendant before the Addl.SCJ and ACMM Court, Bengaluru praying for ejectment with a direction to 3rd defendant to surrender the physical possession of the schedule property to the 1st defendant. If the said suit is allowed, the plaintiff will be put to irreparable loss and hardsh8ip and it will become impossible to recover Rs.4,05,000/- from the 1st defendant. Hence the plaintiff has constrained to file the suit for declaration that the Sale Deed dated.16.12.2012 executed by the plaintiff in favour of the 1st defendant in respect of the suit schedule property is not valid and that it does not bind the plaintiff in any manner and consequential relief of injunction restraining the 1st defendant permanently from dealing with the suit schedule property in any manner on the basis of the 10 O.S.No.7820/2012 said Sale Deed and alternatively, for recovery of Rs.4,05,000/- with interest at the rate of 12% p.a. from 16.12.2011to the date of recovery of the amount along with costs.
7. In response to the notice, the defendants 1 to 3 have appeared through their learned respective counsel and resisted the claim of the plaintiff by filing their separate written statements.
8. The 1st defendant has denied each and every allegation made in the plaint as false and the suit of the plaintiff is not maintainable. However, it is admitted that the 1st defendant has filed a suit S.C.1055/2012 against the 3rd defendant for ejectment with a direction to the 3rd defendant to surrender the physical possession of the schedule property to the 1st defendant. Besides, it is submitted that she is the bonafide purchaser of the suit schedule property from the plaintiff under the registered Sale Deed dated.16.12.2011 for consideration and the consideration amount paid in full to the plaintiff at the time 11 O.S.No.7820/2012 of registration of the Sale Deed. When the right, title, interest and possession of the suit schedule property is absolutely conveyed in favour of the defendant No.1 by the plaintiff and then, claim of the plaintiff put forth in the suit is unsustainable in the eye of law and it is bad and illegal. The plaintiff has not approached the court with clean hands and put forth untenable claim. The suit of the plaintiff totally devoid of merits. There is no cause of action for the suit. Therefore, it is prayed to dismiss the suit with exemplory costs.
9. On the other hand, the defendant No.3 has filed separate written statement wherein he has not only admitted each and every allegations made in the plaint, but also submitted no objections to decree the suit as prayed in the plaint.
10. On the basis of the pleadings of the respective parties, the following issues have been formulated on 29.11.2013:- 12 O.S.No.7820/2012
ISSUES
1. Does the plaintiff prove that, he is the absolute owner of the plaint schedule property?
2. Does the plaintiff prove that, the sale deed executed by him on 16.12.2012 in favour of defendant No.1 is not valid for the reasons stated in the plaint?
3. Does the plaintiff prove that, he was in possession of the plaint schedule property as on the date of filing of the suit?
4. Does the plaintiff prove that, defendants are interfering in his possession over the suit schedule property?
5. Does the plaintiff prove that, he is entitled for recovery of Rs.4,05,000/- with interest @ 12% p.a. from 16.12.2011 till the realization of the same for the reasons stated in the plaint?
6. Does the plaintiff proves that, he is entitled for relief as prayed in the plaint?
7. What order or decree?
11. In order to substantiate his claim, the plaintiff was examined as P.W.1 and adduced documentary evidence from Ex.P1 13 O.S.No.7820/2012 to P10. Meanwhile the husband of the 1st defendant as her GPA holder was examined as D.W.1 and got marked Ex.D1 to D13 in support of defence of defendant No.1. Though defendant No.3 has filed written statement, yet neither the defendant No.2 nor defendant No.3 has cross-examined either P.W.1 or D.W.1.
12. It is relevant to note here that this suit has been transferred from CCCH.No.38 to this court at the stage of final arguments as per the order passed in PPS (CCC) 68/14 dated.1.12.2014 on 23.01.2015. On that date, GPA holder of defendant and counsel for defendant present. On 7.2.2015 both the counsel present and prays time for arguments. Subsequently no representation was being made on behalf of plaintiff. The counsel for the defendant has filed written arguments. I have perused the material placed on record.
14 O.S.No.7820/2012
13. My findings on the above points are as under:-
Issue No.1: In the Negative Issue No.2: In the Negative Issue No.3: In the Negative Issue No.4: In the Negative Issue No.5: In the Negative Issue No.6: In the Negative Issue No.7: As per final order for the following:-
/REASONS/
14. Issues No.1 to 3:- Since these issues are interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration.
15. The plaintiff is relying on his oral evidence supported by the documentary evidence on record. As deposed by P.W.1, the plaintiff purchased the suit schedule property through registered Sale Deed dated.25.5.2006 from the erstwhile owner. The 3rd defendant was already in occupation of the suit schedule property from the beginning of the year 1990. The plaintiff entered into Agreement of sale of suit schedule property with 2nd defendant for consideration of Rs.21 Lakhs on 10.06.2009 as per Ex.P1 on 15 O.S.No.7820/2012 receipt of earnest money of Rs.4,05,000/-. Meanwhile, the plaintiff was said to have sold the suit schedule property to the 1st defendant through registered Sale Deed dated.16.12.2011 as per Ex.P2 for consideration of Rs.14 Lakhs. The 1st defendant had purchased the suit property knowing pending sale transaction between the plaintiff and the 2nd defendant. As per oral understanding, the 1st defendant agreed to refund Rs.4,05,000/- to the 2nd defendant and then to take delivery of possession of suit property. Even then, the 1st defendant did not turn up inspite of demand notice by the plaintiff. The 1st defendant with-held Rs.4,05,000/- from the sale consideration to be refundable to the 2nd defendant by the plaintiff and the plaintiff executed registered Sale Deed as he trusted the 1st defendant without receiving the entire sale consideration amount. Under these circumstances the plaintiff has constrained to file the suit for declaration, consequential injunction and alternative relief of recovering said sum of Rs.4,05,000/- from the 1st defendant. 16 O.S.No.7820/2012
16. On the other hand, the 1st defendant has denied the entire claims so set up by the plaintiff as against her in respect of the suit schedule property. The specific defence of the 1st defendant is that she is the bonafide purchaser of the suit schedule property through registered Sale Deed dated.16.12.2011 for consideration. The plaintiff has executed the registered Sale Deed after receiving the full sale consideration. The 1st defendant being owner has let out the schedule premises on monthly rent to the 3rd defendant and due to default in payment of rent, she field ejectment suit in S.C.no.1055/2012 and also filed Execution case for eviction of 3rd defendant from the suit schedule property and also for arrears of rent as per the Judgment & Decree passed in said Small Causes case. There is no cause of action to the suit and suit is liable to be dismissed with exemplory costs.
17 O.S.No.7820/2012
17. The 3rd defendant has supported the plaintiff and submitted no objection to decree the suit as prayed against the 1st defendant.
18. P.W.1 has reiterated the averments made in the plaint in the course of his examination-in-chief by way of an affidavit. It is evident from the cross-examination of P.W.1 that the plaintiff knows the 1st defendant from last 15 years. Admittedly the plaintiff sold his property to the 1st defendant but denied that he has executed a registered Sale Deed by receiving the entire sale consideration amount. It is also an admitted fact that there is no mention in the Sale Deed about his balance sale consideration, but the defendant No.1 has orally told the plaintiff that she has to pay the balance sale consideration of Rs.4, 05,000/- to the plaintiff. There is no written Agreement with respect to said balance sale consideration amount. Even after purchase of suit schedule property by defendant No.1, the 3rd defendant is in possession of suit schedule property. It is also 18 O.S.No.7820/2012 admitted that defendant No.1 has filed ejectment suit against the 3rd defendant in respect of schedule property. As admitted by P.W.1, the 3rd defendant always accompanies the plaintiff to attend the court on every date of hearing. Even the 3rd defendant was standing behind the plaintiff near the witness box while recording the deposition of P.W.1. The plaintiff admittedly has filed the present suit after filing of ejectment suit by defendant No.1 against defendant No.3. The khatha of the suit property is transferred in the name of defendant No.1 after execution of Sale Deed, but as deposed by P.W.1, the possession of the suit property is with the plaintiff. It is a fact that the 3rd defendant is distant relative of plaintiff.
19. It is pertinent to note here that though the 1st defendant has appeared and contested the claim of the plaintiff by filing written statement personally verified by her, yet the 1st defendant for the reasons best known to her has chosen not to depose before the court personally and authorised her husband 19 O.S.No.7820/2012 by way of GPA as per Ex.D1 to depose on her behalf. D.W.1 has reiterated the averments made in the written statement in the course of his examination-in-chief by way of an affidavit. It is evident from the cross-examination of D.W.1 by the counsel for the plaintiff that he has been residing in the house belonging to his father from last 7 to 8 years at the address as deposed by him in his examination-in-chief. The suit property is adjacent to the residential house of 1st defendant. According to D.W.1, the property purchased by the 1st defendant is consisting of one hall, one room, one kitchen and subsequently they constructed small room. D.W.1 has stoutly denied that 3rd defendant is in possession of the suit property as per the Agreement between the plaintiff and 2nd defendant. The 2nd defendant paid Rs.4,05,000/- to the plaintiff. It is also denied that the 1st defendant inspite of knowing the fact of earlier sale transaction between the plaintiff and 2nd defendant had purchased the suit property and undertook to pay a sum of Rs.4,05,000/- to the 2nd 20 O.S.No.7820/2012 defendant and to take the possession of the schedule property from the 3rd defendant as the 1st defendant with-hold the said amount of sale consideration payable to the 1st plaintiff at the time of execution of the Sale Deed. Nothing has been elicited from the cross-examination of D.W.1 so far the Small Causes case filed by the 1st defendant against the 3rd defendant and the Judgment & Decree for eviction passed in that case so as to take into consideration.
20. On scrutinizing the evidence on record, it is proved before the court that the plaintiff purchased the suit schedule property through registered Sale Deed dated.25.5.2006. The plaintiff entered into Agreement of sale with 2nd defendant on 10.6.2009 as per Ex.P1. Accordingly the 2nd defendant agreed to purchase the schedule property for a sum of Rs.21 Lakhs and the plaintiff entered into that Agreement of sale by receiving the earnest money of Rs.4,05,000/- and the registration of the sale should have been completed on or before six months from the 21 O.S.No.7820/2012 date of that Agreement i.e., on or before 10.12.2009 and the balance amount of Rs.16,95,000/- would have been paid by the 2nd defendant at the time of registration. Even then, neither the plaintiff nor the 2nd defendant did care to take steps to enforce the said Agreement of sale since 10.12.2009 till today. On the other hand, the plaintiff has sold out the suit schedule property to the 1st defendant through registered Sale Deed dated.16.12.2011 as per Ex.P2 for total consideration of Rs.14 Lakhs only. As per the recitals in the Sale Deed, the plaintiff had made it clear to the 1st defendant that he had not entered into any Agreement or arrangement for sale of schedule property with any one else and have not executed any power of attorney to deal with the schedule property and that the schedule property is not subject-matter of any litigation or proceedings. Acting on the said representation made by the plaintiff, the 1st defendant in bonafide believing the words of the plaintiff, had agreed to purchase the schedule property. The entire sale consideration of 22 O.S.No.7820/2012 Rs.14 Lakhs was paid to the plaintiff by way of cash and the plaintiff being vendor was fully satisfied by sale consideration amount paid to him and there was no dues received form the 1st defendant in respect of the same. Besides, the plaintiff had handed over the vacant possession of the schedule property to the 1st defendant for the reasons best known to him. As on the date of execution of the registered Sale Deed absolutely there is no recitals to show that the 1st defendant with-hold a sum of Rs.4,05,000/- out of the said consideration of Rs.14 Lakhs payable by the plaintiff to the 2nd defendant. It is also an admitted fact that there is no Agreement or alleged understanding among the plaintiff, 1st defendant and the 2nd defendant regarding payment of the said amount to the 2nd defendant on behalf of plaintiff and to get the vacant possession of the schedule property from the 3rd defendant as affirmed in the plaint by the plaintiff. Infact, the 1st defendant issued legal notice dated.19.5.2012 to the 3rd defendant for the first time 23 O.S.No.7820/2012 after execution of the registered Sale Deed in respect of the suit schedule property by the plaintiff in her favour thereby terminated the tenancy of the 3rd defendant created as per Rental Agreement dated.16.12.2011 and called upon the 3rd defendant to handover vacant possession with arrears of rent.
21. The 3rd defendant issued reply notice to the Advocate for the 1st defendant as per Ex.P4 on 6.6.2012 on similar facts as averred in the plaint by the plaintiff regarding sale Agreement between the plaintiff and 2nd defendant and the amount of Rs.4,05,000/- with-hold by the 1st defendant payable to the 2nd defendant and also 3rd defendant is a habitual drunkard and taking advantage of his habit had obtained the signatures on some documents with a pretext that the document is the Lease Agreement with terms narrated therein and called upon the 1t defendant to keep the matter properly resolved by paying Rs.4,05,000/- to 2nd defendant as per the understanding etc., 24 O.S.No.7820/2012 The said reply notice was served upon the Advocate for 1st defendant as per Ex.P5- Postal acknowledgment.
22. It is very much relevant to note here that the plaintiff has also issued a legal notice on same date through the same Advocate on 6.6.2012 to the 1st defendant on similar set of facts as narrated in the reply notice of 3rd defendant and called upon the 1st defendant that she has with-hold Rs.4,05,000/- from the sale consideration and proceedings and believing that the 1st defendant would pay the said amount to 2nd defendant and she would take delivery of possession from 3rd defendant, the plaintiff had signed the registered Sale Deed in her favour. If the 1st defendant did not pay the said amount with-hold by her to 2nd defendant, the plaintiff would proceed against her in court of law for cancellation of sale deed or declaration as invalid etc., that notice of the plaintiff was also served upon the 1st defendant as per Ex.P8- postal acknowledgment.
25 O.S.No.7820/2012
23. On the other hand, the 1st defendant has filed S.C.1055/2012 in the court of Chief Judge, Court of Small Causes against the 3rd defendant for ejectment on 20.7.2012 as it is evident from the order sheet -Ex.D2 and the plaint filed by the 1st defendant is got marked as Ex.D3 on the ground that, the 3rd defendant is tenant under the 1st defendant as per the Rent Agreement dated.16.2.2012 and the 1st defendant terminated the tenancy by issuing legal notice as noted supra dated.19.5.2012 and sought for ejectment of 3rd defendant from the suit property and also claimed arrears of rent. Ex.P8 summons issued in the said Small Causes case and Ex.P19 Driving license discloses that the 3rd defendant is in physical possession and occupation of the suit schedule property from May 1990. The 3rd defendant has resisted the claim of the 1st defendant by filing his written statement as per Ex.D4 in S.C.1055/2012 on the similar grounds as urged by the plaintiff in the plaint in this suit. The 3rd defendant has denied not only the tenancy between the 1st 26 O.S.No.7820/2012 defendant and 3rd defendant, but also made similar allegations against the 1st defendant so far the subject-matter of the suit is concerned.
24. Besides, the 3rd defendant as D.W.1 has deposed in S.C.1055/2012 as per Ex.D5 wherein the 3rd defendant has denied that he is not the tenant under the 1st defendant but admitted that the 1st defendant purchased the suit schedule property from the plaintiff on 16.12.2011 through registered Sale Deed. The 3rd defendant has shown his ignorance about the khatha in respect of the suit property got changed by the 1st defendant into her name in the BMP Revenue Records. The Encumbrance Certificate at Ex.D7 discloses the sale transaction between the plaintiff and 1st defendant and there is no encumbrance created subsequent to the said sale transaction in respect of the suit property. The Sale Deed executed in favour of the 1st defendant has been acted upon as per property Register extract and tax paid receipts at Ex.D8 to Ex.D12. Ex.D13 the 27 O.S.No.7820/2012 certified copy of Judgment & Decree passed in S.C.1055/2012 dated.1.7.2014 discloses that after full fledged trial, the Learned 12th Addl. Small Causes Judge, Bengaluru has decreed the suit of the 1st defendant with costs thereby directed the 3rd defendant to quit, vacate and deliver the possession of the suit schedule premises in favour of the 1st defendant within two months from the date of that order and to pay arrears of rent of Rs.13,750/- with damages of Rs.2,750/- from the month of June 2012 to till delivery of physical possession of the suit schedule premises in favour of the plaintiff. Neither the 3rd defendant nor the plaintiff has challenged the said Judgment & Decree passed by the Small Causes Court in respect of the suit schedule property.
25. On taking into consideration the contents of the notices exchanged among the 1st defendant, 3rd defendant and the plaintiff as well as plaint and written statement of 3rd defendant in the instant suit. Even an ordinary prudent man can draw an inference that there is a collusion between the plaintiff and 3rd 28 O.S.No.7820/2012 defendant apart from 2nd defendant who is none-other than the full brother of the 3rd defendant. In the absence of atleast probable evidence, it can be presumed that though the 1st plaintiff entered into an Agreement of sale with 2nd defendant, yet no steps were being taken by either of the parties to enforce the terms of the Agreement as stipulated therein within the reasonable time. The recitals in the registered Sale Deed executed by the plaintiff in favour of the defendant during undisputed period themselves clarify that the said sale is absolute, unconditional sale made in favour of the 1st defendant by the plaintiff. Though the recitals in the Sale Deed reflects that the possession was handed over by the plaintiff to the 1st defendant as on the date of execution of the registered Sale Deed, yet it is proved from the other evidence that the 3rd defendant was/is in possession of the suit schedule property atleast from the month of May 1990 even prior to plaintiff purchasing the suit schedule property from the erstwhile owner 29 O.S.No.7820/2012 for the reasons best known to them. The plaintiff did not take any steps to take the physical possession of the schedule property from the 3rd defendant prior to execution of the Sale Deed in favour of the 1st defendant. In the absence of documentary evidence and silence on the part of the plaintiff and defendant No.2 and 3 for a long time, the sale Agreement between the plaintiff and 2nd defendant became barred by law of limitation for the reasons best known to them. When the 1st defendant has purchased the suit schedule property through registered Sale Deed for valid consideration and the plaintiff has unconditionally sold the schedule property on receipt of entire sale consideration and then not only the right, title or interest of plaintiff over the suit schedule property was extinguished but also crated absolute ownership over the suit schedule property in favour of 1st defendant. Though the 1st defendant has not produced the alleged Rent Agreement executed by 3rd defendant, yet it is proved from the Judgment & Decree passed in 30 O.S.No.7820/2012 S.C.1055/2012 that the 1st defendant being owner/landlord is entitled to recover vacant possession of the suit schedule property from the defendant No.3 as he was a tenant under the 1st defendant. Looking from any angle, when the plaintiff has sold out the suit schedule property through registered Sale Deed in favour of the 1st defendant on receipt of entire sale consideration as per the recitals in the Sale Deed and then the plaintiff is estopped from either denying the fact of sale of schedule property to the 1st defendant or challenge the validity of that registered Sale Deed as claimed in the suit. Infact, the plaintiff being party to the registered Sale Deed dated.16.12.2011 ought to have sought for cancellation of that Sale Deed on the alleged grounds against the 1st defendant. On this ground also, the suit of the plaintiff is not maintainable in the present form. Looking from any angle, it is proved from the evidence on record that the plaintiff was the absolute owner of the plaint schedule property but he has lost his 31 O.S.No.7820/2012 any sort of right over the suit schedule property immediately on execution of registered Sale Deed dated.16.12.2011 in favour of the 1st defendant and that Sale Deed being legal and valid is binding on the plaintiff. It is also proved from the averments made in the plaint itself that it is the 3rd defendant who has been in exclusive possession of the suit property from the year 1990. Even the alleged possession said to have been handed over to the 1st defendant by the plaintiff is also against the existing facts in controversy between the parties. Hence I answer Issue Nos.1 to 3 in the Negative.
26. Issue No.4 to 6:- When the plaintiff has failed to prove atleast possession over the suit schedule property as on the date of suit and then the question of any sort of interference by any of the defendants into possession of the plaintiff does not arise. The distinct prayer made in the plaint themselves reflect that the plaintiff is uncertain about his claim and contentions. Except the self serving pleadings and oral evidence of P.W.1, 32 O.S.No.7820/2012 nothing is placed on record to show that the 1st defendant has with-hold a sum of Rs.4,05,000/- payable by the plaintiff to the 2nd defendant and the 1st defendant is liable to pay the same with interest as claimed by the plaintiff. As such, without much discussion, I hold that the plaintiff is not at all entitled for any of the reliefs as prayed in the plaint and the suit of the plaintiff for declaration with consequential relief in the present form is not at all maintainable without seeking cancellation of Sale Deed. Looking to the attitude of the plaintiff and defendants 2 and 3, the instant suit filed by the plaintiff subsequent to 1st defendant filing Small Causes case against the 3rd defendant filed by the 1st defendant without having any sort of right and thereby put the 1st defendant into unnecessary litigation. Hence I answer Issue Nos.4 to 6 in the Negative.
27. Issue No.7:- In view of my findings on the issues No.1 to 6 and the reasons stated therein, in the result, I proceed to pass the following:-
33 O.S.No.7820/2012
ORDER The suit of the plaintiff is dismissed with costs to the 1st defendant.
Draw up a decree
accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 13th day of July, 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Sri.M.Govindaswamy
(b) Defendant's side :
D.W.1: Sri.Trilok Kumar
34 O.S.No.7820/2012
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Original agreement of sale dated
10.06.2009
Ex.P2: Certified copy of sale dated
16.12.2011
Ex.P3: Legal notice dated 19.05.2012
Ex.P4: Reply notice dated 6.6.2012 issued
to P.M.Gopi
Ex.P5: One Postal acknowledgment
Ex.P6: Reply notice dated 6.6.2012 issued
to Vijayalashmi
Ex.P7: One Postal acknowledgment
Ex.P8: Summons of 12th Additional Small
cause judge
Ex.P9: certified copy of plaint filed before
Small cause judge, Bangalore to
vijalalakshimi
Ex.P10: Certified copy of driving license of
defendant No.3 M.Gopi
(b) For defendant's side:-
Ex.D1: Power of attorney executed by
defendant No.1 in favour of D.W.1
Ex.D2: Certified copy of order sheet
pertains to S.C. No.1055/2012
Ex.D3: Certified copy of plaint filed in S.C.
No.1055/2012
Ex.D4: Certified copy of written statement
filed by the defendant in S.C.
No.1055/2012
35 O.S.No.7820/2012
Ex.D5: Certified copy of deposition of
defendant No.3 M.Gopu in S.C.
No.1055/2012
Ex.D6: Certified copy of sale deed dated
16.12.2011
Ex.D7: Certified copy of encumbrance
certificate
Ex.D8: Certified copy of property register
extract issued by BBMP
Ex.D9-12: Certified copy of four tax paid
receipts
Ex.D13: Certified copy of decree passed in
S.C.1055/2012
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
36 O.S.No.7820/2012
(Judgment pronounced in open court)
The suit of the plaintiff is
dismissed with costs to the 1st
defendant.
Draw up a decree
accordingly.
(vide Judgment passed)
XII ACCJ;Bangalore