Bangalore District Court
S.Sridhar Reddy vs Smt.Byamma on 6 February, 2021
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH41) AT BENGALURU.
Dated this the 6th day of February, 2021.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.257/2005
PLAINTIFFS : 1. S.Sridhar Reddy
S/o Gopal Reddy
Aged about 45 years, r/at
No.13, Ashwini Nilaya,
L.B.Shastrinagar, 4th cross,
HAL Post,
Bangalore560 017.
2. Ms.Palnathi Kranthi
D/o P.V.Sathyanarayana
Aged about 23 years, r/at
"Arnica Mont",
Behind Victoria Enclave,
Hasienda Club Road,
Malleshpalya,
Bangalore560 075.
3. Boyapati Shivaji
S/o Boyapatti Madhusudhana Rao
Aged about 50 years, r/at
No.C4/13, Samrat Garden,
Behind Vaibhav Theatre,
Hadapsar, Pune.
2 O.S.No.257/2005
By GPA holder Sri.P.V.Sathyanarayana,
S/o late P.Sitaramaiah,
"Arnica Mont",
Behind Victoria Enclave,
Hasienda Club Road,
Malleshpalya,
Bangalore560 075.
4. K.Bhaskaran,
S/o Peddaiah
Since deceased by his LRs
4(a). Smt.K.Rajeshwari
W/o late Sri.K.Bhaskaran,
Aged about 49 years, r/at
Venkateshwara Nilaya,
No.1, Sy.No. 177/1,
Krishna Colony,
Gangamma Temple road,
Mahadevapura,
Bangalore560 048.
4(b). Smt.K.Archana
D/o late Sri.K.Bhaskaran,
Aged about 29 years, r/at
Venkateshwara Nilaya,
No.1, Sy.No. 177/1,
Krishna Colony,
Gangamma Temple road,
Mahadevapura,
Bangalore560 048.
3 O.S.No.257/2005
4(c). Sri.B.Ashish
S/o late Sri.K.Bhaskaran
Aged about 26 years, r/at
No.1, Sy.No. 177/1,
Krishna Colony,
Gangamma Temple road,
Mahadevapura,
Bangalore560 048.
5. A.Ganesan
S/o R.Appa Dorai
Aged about 55 years, r/at
No.42/C, 2nd main road,
Lakshminarayanapura,
Srirampuram Post,
Bangalore560 021.
6. Smt.Thanuja Surendra
W/o P.Surendra
Aged about 39 years, r/at
No.176/5, 3rd cross,
Bhuvaneshwarinagar,
C.V.Raman Nagar Post,
Bangalore560 093
Represented by GPA Holder,
Sri.S.Manjunatha Reddy
S/o K.C.Srirama Reddy
Aged about 30 years, r/at
No.127, Puttappa Layout,
4th cross, Mahadevapura village
& Post,
Bangalore560 048.
4 O.S.No.257/2005
7. Sri.N.Jayarama
S/o late Nanjunda Reddy,
Major,
R/at Mahadevapura,
Whitefield road,
Mahadevapura Post,
Bangalore560 048.
8. Smt.P.V.Satyadurga Devi
W/o Sri.P.Basavapunniah
Aged about 50 years, r/at
No.338, Sai Sri Gangamma
Temple Layout,
Mahadevapura,
Bangalore560 048.
9. Sri.B.Srinivasa Rao
S/o late B.Krishnamurthy
Aged about 42 years, r/at
No.D.19/7, D.R.D.O Township,
C.V.Ramannagar,
Bangalore560 093.
10. Sri.P.Basavapunnaiah
S/o T.Ayyanna
Aged about 51 years, r/at
No.338, Sai Sri Gangamma
Temple Layout, Mahadevapura,
Bangalore560 048.
5 O.S.No.257/2005
11. Sri.C.Sathinesan
S/o late Chellaiah
Aged about 60 years, r/at
No.154/4, Satya Nilayam,
BEML Road, New Thippasandra,
Bangalore560 075.
12. Smt. Padmini
W/o Sri. Shankara Rao
Aged about 56 years, r/at
No.59, 3rd cross,
5th main road,
Raghavendra Colony,
Chamarajapet,
Bangalore560 010.
13. Sri. Gangadharan K.C
So Sri.Kunhiraman
Aged about 55 years, r/at
No.262, Annayappa Garden,
New Thippasandra,
Bangalore560 075.
14. Sri. Om Prakash Vishwakarma
S/o Sri R.P.Vishwakarma
Aged about 33 years, r/at
No.D17/10, D.R.D.O Township,
C.V.Ramannagar,
Bangalore560 093.
6 O.S.No.257/2005
15. Sri.Babu Rao .M
S/o Sri. M.Rangadas,
Aged about 45 years, r/at
No.D17/10, D.R.D.O Township,
C.V.Ramannagar,
Bangalore560 093.
(By Sri. V.B.Shivakumar Advocate)
AND:
DEFENDANTS: 1. Smt.Byamma
W/o late D.Puttappa
Aged about 67 years,
2. Sri. P.Krishnappa
S/o late D.Puttappa
Aged about 47 years,
3. Sri.P.Shanthakumar
S/o late D.Puttappa
Aged about 45 years,
D1 to D3 are residing at
Mahadevapura Extension,
Puttappa Compound,
Bangalore560 048.
4. Sri K.Gopal
S/o Rangappa
Aged about 43 years, r/at
No.455/2, Vijinapura,
Doorvaninagar Post,
Bangalore560 016.
7 O.S.No.257/2005
5. Sri.L.Muniswamy
S/o Lakshmaiah
Aged about 62 years, r/at
No.368, Rajiv Gandhi road,
K.R.Puram Extension,
Bangalore560 036.
6. Sri.M.Krishnappa Reddy
S/o not known to plaintiffs
Major,
R/at No.171, Mahadevapura Village &
Post, Whitefield road,
Bangalore560 048.
7. Smt.Radha
W/o M.Krishnappa Reddy
Aged about 24 years, r/at
No.71, Mahadevapura village & post,
Bangalore560048.
8(a). Bruhath Bengaluru Mahanagara
Palike,
Corporation office,
N.R.Square, J.C.Road,
Bangalore.
By its Commissioner.
8(b). The Joint Commissioner
Bruhath Bengaluru Mahanagara Palike
Mahadevapura Post,
Whitefield,
Bangalore.
8 O.S.No.257/2005
9. The State of Karnataka
Department of Revenue
M.S.Buildings, Dr.Ambedkar Veedhi,
Bangalore560 001.
10. The Special Deputy
Commissioner
Bangalore District,
Bangalore.
11. The Assistant Commissioner
Bangalore East Taluk,
Bangalore.
12. The Tahsildar
Bangalore East Taluk,
Bangalore.
(D1 to D3: By Sri K.V.Ramachandra,
Advocate
D4 By Sri M.N.Balakrishna, Advocate
D5By Sri M.Shanmukhappa, Advocate
D8(b)Sri. Praveen H.P
D8(a) & D6 to 12: Exparte)
i) Date of Institution of the 10012005
suit.
ii) Nature of the suit. Declaration & Injunction
iii) Date of the
commencement of recording 26112009
of evidence.
9 O.S.No.257/2005
iv) Date on which the 06022021
judgment was pronounced.
v) Total Duration Years Months Days
16 27
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
****
JUDGMENT
This is a suit for Declaration & Perpetual Injunction in respect of schedule properties.
2. The plaintiffs filed the suit in a representative capacity praying for declaring that schedule 'A' property is a layout formed by defendant Nos.1 and 4 and conveyed the sites to different persons including plaintiffs. Further, for declaration that sale deed dated 17/11/2004 executed by defendant Nos.1 to 4 in favour of defendant No.5 is not binding on 10 O.S.No.257/2005 plaintiffs and other site owners of schedule 'A' property. Further, for declaration declaring that entire schedule property vests with defendant No.8. Further, for declaration declaring that defendant Nos.9 to 12 do not have any right or authority to assess the schedule 'A' property for the purpose of effecting transfer of mutation, issue of record of rights or transfer the name of defendant No.5 on the representation of defendant Nos.1 to 4 in respect of schedule A property and for perpetual injunction restraining defendants or any person representing them from interfering with schedule properties or dispossess or handover possession to defendant No.5 in respect of schedule properties.
SCHEDULEA PROPERTY Land in Sy.No.177/1, measuring 1 Acre 21 Guntas, situated at Mahadevapura village, Krishnarajapura Hobli, Bangalore South Taluk 11 O.S.No.257/2005 and now called as the Bangalore East Taluk, together with all rights, appurtenance whatsoever manner whether underneath or above the surface and bounded on the :
East by : Baddi Krishnappa's property West by : Ramaiah's property North by : Appanna's land South by : Land in Survey No.176 SCHEDULEB PROPERTY Residential premises bearing Site No.7, in khatha No.177/1, New khatha No.167, situated at Mahadevapura village, K.R.Puram Hobli, Bangalore East, now Bangalore East Taluk, presently coming within the jurisdiction of Mahadevapura City Municipal Council, Ward No.3, Bangalore, measuring East to West 30 feet and North to South 53 feet totally measuring 1,500 sq.ft. and bounded on the :
East by : House Site No.8
West by : House Site No.6B
North by : Road
12 O.S.No.257/2005
South by : Private property
SCHEDULEC PROPERTY
Residential premises bearing Site No.3, in khatha No.177/1, New khatha No.167, situated at Mahadevapura village, K.R.Pura Hobli, Bangalore East, now Bangalore East Taluk, presently coming within the jurisdiction of Mahadevapura City Municipal Council, Ward No.3, Bangalore measuring East to West 30 feet and North to South 43 feet with barbed wire fencing and bounded on the:
East by : Site No.4
West by : Site No.2
North by : 25 feet road
South by : Private property
SCHEDULED PROPERTY
Residential premises bearing Site No.5A, in khatha No.177/1, New khatha No.167, situated at Mahadevapura village, K.R.Pura Hobli, Bangalre 13 O.S.No.257/2005 East, now Bangalore East Taluk, presently coming within the jurisdiction of Mahadevapura City Municipal Council, Ward No.3, Bangalore measuring East to West 30 feet and North to South 41 feet totally measuring 1,230 sq.ft. and bounded on the:
East by : Site No.5B
West by : Site No.4
North by : 25 feet road
South by : Private property
SCHEDULEE PROPERTY
Residential premises bearing Site No.1, in khatha No.177/1, New khatha No.167, situated at Mahadevapura village, K.R.Pura Hobli, Bangalore East, now Bangalore East Taluk, presently coming within the jurisdiction of Mahadevapura City Municipal Council, Ward No.3, Bangalore measuring East to West 30 feet and North to South 50 feet, totally measuring 1,500 sq.ft. and bounded on the:
East by : Site No.2
West by : private property
14 O.S.No.257/2005
North by : 25 feet road
South by : Private property
SCHEDULEF PROPERTY
Residential premises bearing Site No.22/B in khatha No.177/1, New Khata No.167, situated at Mahadevapura village, K.R.Pura Hobli, Bangalore East, now Bangalore East Taluk, presently coming within the jurisdiction of Mahadevapura City Municipal Council, Ward No.3, Bangalore measuring East to West 60 feet and North to South 20 + 10/2 and bounded on the:
East by : 30 feet main road
West by : Site No.24
North by : Private property
South by : Site No.22
together with residential dwelling premises
constructed.
SCHEDULEG PROPERTY
All that piece and parcel of property, bearing Site No.5B, khatha No.215 in property No.177/1, 15 O.S.No.257/2005 situated at Mahadevapura village, K.R.Pura Hobli, Bangalore East, now Bangalore East Taluk, presently coming within the jurisdiction of Mahadevapura City Municipal Council, Ward No.3, Bangalore measuring East to West 30 feet and North to South 40 feet, totally measuring 1,200 sq.ft. and bounded on the:
East by : 30 feet road
West by : Site No.5A
North by : 25 feet road
South by : Private property
SCHEDULEH PROPERTY
All that piece and parcel of property, bearing Site No.6, in khatha No.824 in property No.177/1, situated at Mahadevapura village, K.R.Pura Hobli, Bangalore East, now Bangalore East Taluk, presently coming within the jurisdiction of Mahadevapura City Municipal Council, Ward No.3, Bangalore measuring East to West 30 feet and North to South 50 feet, totally measuring 1,500 sq.ft. and bounded on the:16 O.S.No.257/2005
East by : Site No.6A West by : 30 feet road North by : 25 feet road South by : Private property
It is pleaded that Sy.No.177/1 measuring 1 Acre 21 guntas of Mahadevapura village, K.R.Puram Hobli, Bangalore South Taluk originally belongs to defendant No.1, who purchased it through a registered sale deed during 195455. The defendant No.1 executed a Power of Attorney in the name of defendant No.4 on 23/09/1991. The Power of Attorney is coupled with interest for consideration and also accompanied with an agreement to sale.
The defendant No.4 paid consideration amount of Rs.5,18,000/ to defendant No.1 for purchase of entire schedule A property measuring 1 Acre 21 Guntas. The plaintiffs averred that defendant No.4 formed a layout consisting of of 27 sites and provided 30 feet road connecting Whitefield main road and 17 O.S.No.257/2005 connecting said 30 feet wide road from Mahadevapura to Kaggadasapura road towards southern and northern sides. It is averred that in the 30 feet wide road on east and western side, defendant No.4 formed residential sites and also provided a 25 feet wide road.
It is averred that defendant No.4 sold schedule B property on 08/12/1995 as Power of Attorney holder of defendant No.1 in favour of one K.Krishnan, who in turn sold it to plaintiff No.1 through sale deed dated 26/04/1999. It is further averred that plaintiffs 2 to 7 have purchased suit schedule 'C' to 'H' properties through registered sale deeds dated 04/10/2000, 21/10/2000, 02/09/2004 from defendant No.4/power of attorney holder of defendant No.4 respectively. Further, they have got changed khatha in their names and paying taxes. Further, they are in possession, enjoyment of the respective 18 O.S.No.257/2005 properties by constructing buildings, erecting barbed wire fencing.
3. It is averred that plaintiffs are in continuous possession of different portions of the property by exercising rights of ownership. The entire extent of land which consists 27 sites together with sub numbers came to be vested with TMC, Mahadevapura. The TMC, Mahadevapura called upon all the plaintiffs to pay betterment charges fees in respect of the sites purchased. They also notified formation of road. It is averred that defendant No.4 sold entire sites in the layout and instructed the purchasers of sites for applying khata to TMC. Therefore, the schedule 'A' property lost its characteristics of agricultural land. The plaintiffs averred that purchasers of the sites have put up construction and are in possession and enjoyment of respective sites. Therefore, defendant Nos.1 to 4 19 O.S.No.257/2005 have no right, title and interest over the schedule properties. The entire schedule property being a layout is vested with TMC, Mahadevapura, as such defendant Nos.9 to 11 had no right for assessing the property for revenue purpose, issuing record of rights, entering name of any person in index of rights or create rights as agricultural lands in respect of schedule 'A' property. The defendant Nos.1 to 7 are making unlawful and illegal attempt to get their name transferred in the Mutation register and other revenue records. It is averred that when all the sites have been conveyed by defendant No.4, defendant Nos.1 and 4 much less defendant Nos.2,3 had lost every right, title and interest in respect of schedule A property. By suppressing this material fact, in active collusion and connivance by fraudulent means in order to make unlawful gain, defendant No.4 conveyed schedule A property to defendant No.5 through sale deed dated 17/11/2004. The plaintiffs 20 O.S.No.257/2005 came to know about fraudulent sale in the name of defendant No.5 only on 31/12/2004. After purchase of schedule A property, defendant No.5 in active connivance and collusion with defendant Nos.1 to 4 made an application to Tahsildhar for assessing property and transfer of mutation in his name as the nature and character of agricultural land. It is averred that land itself has lost its character as agricultural land. At the instance of defendant Nos.1 to 4, the khatha has been transferred in the name of defendant No.5. the defendant No.5 being a powerful and influential person is capable of dispossessing, interfering, demolishing the structures put up by plaintiffs. In this regard, plaintiffs approached police authorities and lodged complaint. However, the police have expressed their inability to take action. The plaintiffs pleaded that they have filed O.S.Nos.8943 to 8947/2004, O.S.No.7054/2004, O.S.NO.8284/2004 for permanent injunction. In 21 O.S.No.257/2005 O.S.No.8943/2004, the Court passed statusquo order in respect of the property. The defendant No.1 appeared in that said suit and filed written statement and admitted the possession of plaintiffs and formation of layout by Power of Attorney holder. Under these circumstances, plaintiffs constrained to file the suit. The cause of action accrues to the plaintiffs on 08/12/1995, 04/10/2000, 27/08/1992, 02/09/2004 and 27/09/2004 when plaintiff No.1 and other persons have purchased property in schedule 'A' layout, further on 28/12/2004 when notice was issued to defendant Nos.9 to 12 and complaint lodged.
4. During the pendency of the suit, plaintiffs deleted defendant No.8 and impleaded defendant Nos.8(a) and (b).
22 O.S.No.257/2005
5. In pursuance of the summons, defendant Nos.1 to 5, 8(b) put their appearance. The defendant Nos.6,7, 8(a), 9 to 12 inspite of service of summons, fails to put their appearance, as such they are placed exparte. The defendant Nos.1,4,5, 8(a) and 8(b) filed written statements.
The defendant No.1 in the written statement averred that suit of the plaintiffs is not maintainable in law or on facts and is liable to be dismissed. The suit is bad for misjoinder of parties. The defendant Nos.2 and 3 are unnecessary parties to the proceedings. It is averred that defendant No.1 was the absolute owner of the schedule A property and she has no right, title, interest and possession over the schedule A property, as such she is not necessary and proper party to the suit. The defendant averred that she was owner of Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village and she has executed a 23 O.S.No.257/2005 registered Power of Attorney in the name of defendant No.4 and defendant No.4 purchased scheduleA property for the purpose of formation of a residential layout. The defendant No.4 formed a residential layout and he might have executed registered sale deeds in the names of various site owners. The defendant averred that the purchasers of the sites formed in Sy.No.177/1 applied to TMC. Mahadevapura, made enquiries with defendant No.1 and made khatha in respect of sites have been issued to the site owners. The defendant averred that defendant No.2 and 3 did not join for execution of Power of Attorney in the name of defendant No.4 for the reason that they are not owners of the properties and they had no interest in it. However, they were witnesses to the Power of Attorney. The defendant averred that she is residing in and around the property, noticed constructions in different sites by the plaintiffs. The defendant averred that she do 24 O.S.No.257/2005 not know about the registered sale deed executed in the name of L,Muniswamy. It is averred that on the strength of Power of Attorney in case defendant No.4 executed sale deeds in favour of different site owners and subsequently executing sale deed in the name of defendant No.5, is a fraudulent sale deed. The defendant averred that she has not executed any sale deeds, as such she is not entitled to indemnify the plaintiffs in respect of fraud committed by defendant No.4 on the strength of Power of Attorney. As a Power of Attorney being coupled with interest for consideration, defendant No.1 has no right, title and interest in respect of sales. The defendant pleaded that on the basis of sale deeds executed by defendant No.4 to different site owners, CMC assigned khatha numbers. The defendant No.4 mentioned private site numbers to Sy.No. 177/1 so as to convey title of sites for the reason that it vest with Mahadevapura TMC. The site numbers 25 O.S.No.257/2005 assigned in the layout by defendant No.4 forms part of Sy.No.177/1.
6. The defendant No.4 in the written statement averred that suit of the plaintiffs is not maintainable in law or on facts. The suit for declaration of title without seeking possession is not maintainable. The Court fee paid is not proper and sufficient. The suit of the plaintiffs is bad for misjoinder of necessary parties. The defendants admits averments made out in para 2 of the plaint as to defendant No.1 was absolute owner of Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village. The land Sy.No.177/1 is an agricultural land and it is not converted for nonagricultural purpose. It is averred that defendant No.1 executed Power of Attorney in his favour authorizing to deal with scheduleA property and to act upon with accordingly. It is averred that defendant No.4 sold scheduleA 26 O.S.No.257/2005 property in favour of defendant No.5. The defendant admits averments made out in para 3 of the plaint regarding payment of consideration amount by him to defendant No.1. The defendant averred that he has not formed any layout in Sy.No.177/1, schedule A property has remained as an agricultural land. There is no road formed by CMC, Mahadevapura. The entire land is lying vacant. It is averred that in the year 1991, defendant No.1 executed Power of Attorney in his favour and delivered physical possession of the scheduleA property. As a Power of Attorney holder, he was in physical possession and enjoyment of scheduleA property till he execute registered sale deed in the name of defendant No.5. It is defendant No.5, who is in physical possession and enjoyment of the scheduleA property by virtue of sale deed dated 17/11/2004. After purchase of property, revenue entries have been made in the name of defendant No.5 vide MR No.30/0405 dated 27 O.S.No.257/2005 10/01/2005. Further, name of the defendant No.5 has been entered in RTC Column 9 & 12. The defendant No.5 being owner of scheduleA property is in physical possession an enjoyment of it. The averments made out in para Nos.5 to 11 is false. It is pleaded that defendant No.4 has not formed any layout nor has sold any site to plaintiffs. The khatha certificate and tax paid receipts obtained by plaintiffs are without any basis and those documents do not give any possessor right and title in favour of plaintiffs. It is averred that suit scheduleB to H property as claimed by plaintiffs is not in existence and khatha referred to these sites are imaginary. There is no layout formed to specify site numbers and khatha numbers. When scheduleA property still is an agricultural land, plaintiffs cannot claim that there are 27 sites formed in scheduleA property. The defendant pleaded that he has not executed any sale deed in the name of plaintiffs. The 28 O.S.No.257/2005 documents produced by the plaintiffs are fabricated documents and created to knock off the valued property belongs to defendant No.4, now it is defendant No.5. It is pleaded that CMC, Mahadevapura has not formed any road nor provided any civic amenities and the entire property is in possession of defendant No.5. The plaintiffs have filed the present suit basing on fabricated documents, as such the same is liable to be dismissed. The defendant denied averments made out in para 12 of the plaint as to plaintiffs are in continuous possession of different portions of scheduleA property. Further, it is denied that CMC, Mahadevapura called upon the plaintiffs to pay betterment charges in respect of their sites. The defendant pleaded that scheduleA property is not vested with CMC, Mahadevapura, but it is vested with revenue authorities. The defendant denied the averments made out in para 13 of the plaint except 29 O.S.No.257/2005 contending that he has sold scheduleA property to defendant No.5 through registered sale deed on 17/11/2004. The defendant denied the averments made out in para Nos.14 to 17 of the plaint as false. No cause of action accrues to the plaintiff to file the suit. On these grounds and substance, prayed for dismissal of the suit.
7. The defendant No.5 in the written statement contended that suit of the plaintiff is not maintainable in law or on facts. The plaintiffs have no legal right or locus standi to file the suit as they have not derived any right, title and interest in respect of any portion of schedule property. The sites mentioned as scheduleB to H do not exist as there is no layout formed in the scheduleA property. It is averred that there is no approved plan for formation of layout in scheduleA property and there is no khatha numbers to scheduleB to H and they are all 30 O.S.No.257/2005 imaginary khathas. No khatha have been issued by CMC, Mahadevapura and no records are maintained in CMC in respect of scheduleB to H properties. It is averred that suit of the plaintiffs is not maintainable as they have no paid proper and sufficient court fee for seeking declaration. The defendant No.5 is in physical possession and enjoyment of the scheduleA property as he purchased it for valuable consideration of Rs.30,50,000/ through a registered sale deed dated 17/11/2004. The name of defendant No.5 has been entered in the revenue records of scheduleA property and the name of the defendant is appearing in RTC of the property. The defendant averred that Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village belonged to defendant No.1. The defendant No.1 executed registered General Power of Attorney in the name of the defendant No.4 in the year 1991, for which defendant Nos.2 and 3 31 O.S.No.257/2005 have given consent. It is further averred that by virtue of General Power of Attorney, defendant No.4 executed absolute sale deed and delivered vacant possession of the scheduleA property to defendant No.5. The defendant admits averments made out in para 3 of the plaint as correct. The defendant No.4 paid consideration amount to defendant No.1. The defendant denied the averments made out in para 4 of the plaint as false. It is denied that defendant No.4 formed a layout in scheduleA land by providing 30 feet road. Further, it is denied that defendant No.4 executed sale deed in the names of plaintiffs in respect of scheduleB to H properties. The defendant denied averments made out in paras 7 to 11 as false. It is averred that except executing sale deed in respect of entire Sy.No.177/1 measuring 1 acre 21 guntas in his name by defendant No.4, no sale deed has been executed. The defendant denied the documents referred in paras 5 to 11 of plaint. It 32 O.S.No.257/2005 is averred that documents are fabricated, created by forging signature of defendant No.4, as such plaintiffs do not derive any right, title and interest in respect of any portion of scheduleA property. The defendant averred that plaintiffs are not in possession of any portion of scheduleA property. The defendant denied the averments made out in para 12 of the plaint as false. It is averred that there is no layout formed in scheduleA property. The scheduleA property is an agricultural land, as such question of vesting the property with CMC, Mahadevapura does not arise. No road has been formed in scheduleA property by CMC, Mahadevapura. The defendant denied the averments made out in plaint that CMC, Mahadevapura formed roads and collected betterment charges from plaintiffs. The defendant denied the averments made out in paras 13 to 16 as false. It is averred that entire Sy.No.177/1 33 O.S.No.257/2005 measuring 1 acre 21 guntas is in possession of defendant. The contention of the plaintiffs as to constructions have come up in the entire layout is not correct. When the plaintiffs are not in possession in any portion of the property, the question of constructing the building by them does not arise. The defendant pleaded that suit filed by the plaintiffs jointly claiming independent right and relief in respect of scheduleB to H property is not maintainable. The suit of the plaintiffs is bad for misjoinder and nonjoinder of necessary parties. On these grounds and substances, prayed for dismissing the suit.
8. The defendant Nos.8(a) and 8(b) in their written statement contended that suit of the plaintiffs is not maintainable for want of statutory notice. No notice has been issued to these defendants as required under Karnataka Municipal 34 O.S.No.257/2005 Corporations Act. No cause of action accrues to plaintiffs to file the suit. The defendants averred that declaration as sought by the plaintiffs against these defendants cannot be granted since alleged layout is unauthorized and illegal one. On enquiry, it is noticed that no one has obtained permission to form layout either from planning authority or any statutory body. Therefore, the suit is liable to be dismissed. The defendants averred that the present suit is between plaintiffs and defendant Nos.1 to 7. The defendant No.8 is not necessary party. The defendants denied the averments made out in paras 2 to 4 of the plaint as they are not within its knowledge. The defendants denied that schedule sites are assessed for taxes and defendant No.8 is collecting taxes by issuing khatha certificate. The defendants averred that khatha numbers mentioned in scheduleB to H properties are false and in correct. No khatha number or reference available in 35 O.S.No.257/2005 books maintained by defendant No.8 office for discharge of official duty. It is averred that necessary permission has not been obtained for formation of layout. The defendants pleaded that it is not aware of execution of various sale deeds in the name of plaintiffs in respect of schedule properties. The defendant denied that entire extent of land, which consist of 27 sites together with sub numbers vest with CMC, Mahadevapura. Further, it is denied that defendant No.8 called upon the plaintiffs to pay betterment fees and charges. The defendants denied the averments made out in para 12 of the plaint as false. It is denied that 8th defendant assessed scheduleA property for the purpose of roads, amenities, drainage, water etc. None of the schedule property were assessed by 8 th defendant. The defendants averred that the alleged layout is unauthorized and illegal and defendant No.8 has not given any facilities or amenities as claimed by the 36 O.S.No.257/2005 plaintiffs. On these grounds and substance, prayed for dismissing the suit.
9. On the basis of pleadings, the following issues are framed:
1. Whether plaintiffs prove that schedule A property is a layout formed by defendants 1 and 4 ?
2. Whether plaintiffs prove that defendants 1 to 4 have lost their right, title and interest in respect of schedule A property by virtue of executing different sale deeds in favour of different purchasers ?
3. Whether the plaintiffs prove that the sale deed dated 17/11/2004 executed by defendants 1 to 4 in favour of defendant No.5 is not binding on them ?
4. Whether plaintiffs prove that schedule A property is vested with defendant No.8 for administrative purpose and for providing basic civic amenities ?
5. Whether plaintiffs prove that defendants 9 to 12 have no right or authority over suit schedule A 37 O.S.No.257/2005 property for transfer of mutation or maintenance of record of rights etc.?
6. Whether plaintiffs are entitled for the relief of Permanent Injunction against defendants in respect of A to G schedule properties ?
7. Whether defendant No.1 proves that she is not necessary and proper party to the suit ?
8. Whether suit is properly valued and court fee paid is sufficient ?
9. What Order or Decree ?
10. To prove and substantiate the plaintiff No.1, General Power of Attorney holder of plaintiff Nos.3,8,9 and 13 examined as PW1 to PW5 and got marked in all 117 documents at Ex.P.1 to Ex.P.117. The defendant No.5 examined as DW1 and got marked 6 documents at Ex.D.1 to Ex.D.6.
11. Heard the arguments.38 O.S.No.257/2005
12. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS
13. ISSUE NO.1 : It is the case of the plaintiffs that defendant No.1 was owner of land Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village, K.R.Puram Hobli, Bangalore South Taluk, now coming within the Bangalore East Taluk. The defendant No.1 was not cultivating this land by herself, executed a Power of Attorney in the name of 4th defendant, which is coupled with interest for consideration. The defendant No.1 also executed an agreement of sale and affidavit affirming on oath having conveyed title to the land in the name of the defendant No.4. The defendant No.4 formed a layout forming 27 sites. The defendant No.4 also provided main road having 30 feet width connecting 39 O.S.No.257/2005 Whitefield main road and connecting Mahadevapura to Kaggadasapura towards southern and northern sides. He formed residential sites on east and west side on said 30 feet road. Further, he also provided a 25 feet wide road to the entire layout. The layout was formed conveying right, title and interest in respect of the property to various purchasers, who purchased sites from 4th defendant. On the otherhand, defendant No.1 in her pleadings contended that she was owner of Sy.No.1771/1 measuring 1 acre 21 guntas of Mahadevapura village and executed a registered Power of Attorney in favour of 4th defendant, who has purchased the land for the purpose of formation of residential layout.
The defendant No.4 formed the residential layout, the layout plan was prepared by him and she was asked to affix her signature for the purpose of formation of layout. The defendant Nos.4 and 5 pleaded and contended that land in Sy.No.177/1 40 O.S.No.257/2005 measuring 1 acre 21 guntas of Mahadevapura village is an agricultural land. The land was not converted for residential purpose, still it is an agricultural land. The defendant Nos.8(a) and (b) in their pleadings contended that no one has obtained permission to form layout from planning authority or any statutory body. No permission or sanction has been given for forming the layout. The alleged layout is an unauthorized and illegal one. To substantiate the respective contentions, plaintiffs relied on the evidence of PW1 to PW5 and documents. PW1 in his evidence states that sites were formed in Sy.No.177/1 of Mahadevapura by defendant No.4. Further, he states that he has seen the layout plan prior to purchase of site. He further states that he do not know which authority have approved the said layout. PW1 admits that no plan was produced before the SubRegistrar at the time of registration of sale deed. PW1 admits that Sy.No.177/1 is not 41 O.S.No.257/2005 converted for residential use. PW2 in his evidence states that Sy.No.177/1 measuring 1 acre 21 guntas is not an agricultural land, but he admits that he has produced any document to show that it is a converted land. PW2 states that he has seen the layout plan and same is approved by the concerned authority, but he do not know which authority approved the said layout. He further states that he has not produced approved plan as the seller has not given. PW2 further states that he has seen layout plan with panchayath seal. PW2 admits that Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village was an agricultural land. PWs3 to 5 in their evidence have stated that they have verified the approved plan issued by Grampanchayath, Mahadevapura, but have not produced in this case. Further, they have stated that Sy.No.177/1 is not an agricultural land, but it 42 O.S.No.257/2005 is a converted land, but they have not produced any document in this regard.
14. On going through the materials placed on record by plaintiffs, this Court finds that except asserting the land Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village is residential converted land and layout has been formed, plaintiffs have not placed any acceptable evidence. It is the specific contention of defendant Nos.4 and 5 in their pleadings that land Sy.No.177/1 measuring 1 acre 21 guntas is still an agricultural land. The land is not converted for residential purpose and layout has been formed. The defendant No.8 also states that no one has obtained permission to form the layout from planning authority or any statutory body in respect of Sy.No.177/1 measuring 1 acre 21 guntas. No such permission or sanction obtained from records available in the office. The alleged 43 O.S.No.257/2005 layout is an unauthorized and illegal layout. In order to form an residential layout, it is mandatory on the part of the land holder to obtain conversion order from the competent authority and obtain sanction plan of the layout. Even in the sale deeds produced by the plaintiffs, there is a mention of site numbers, that itself is not sufficient to show that a residential layout has been formed in Sy.No.177/1 of Mahadevapura village. All the while the plaintiffs in their evidence and pleadings contended that as a Power of Attorney holder of defendant No.1, the defendant No.4 has formed a layout forming 27 sites in it. Absolutely there is no material on record to consider the contention of the plaintiffs as to the layout has been formed by obtaining permission and sanctioned plan from competent authority by providing all civic amenities like road, park, public utility service etc. In the absence of any cogent and reliable documentary evidence, it is very difficult to 44 O.S.No.257/2005 accept the contention of the plaintiffs regarding formation of residential layout in Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village.
15. On the otherhand, defendant No.5, who has been examined as DW1 in his evidence has categorically stated that Sy.No.177/1 measuring 1 acre 21 guntas is an agricultural land and has purchased it from defendant No.4. After purchase, khatha has been effected in his name as per MR No.30/0405 and his name has been entered in RTC. DW1 denied the suggestion that defendant Nos.1 and 4 have formed layout in scheduleA property. The sale deed (Ex.D.1) produced by defendant No.5 reveals that he has purchased agricultural land bearing Sy.No.177/1 measuring 1 acre 21 guntas. On the basis of the sale deed, the name of the defendant No.5 has been mutated. 45 O.S.No.257/2005 Further, the RTC of Sy.No.177/1 also reflects the name of the defendant No.5 in column Nos.9 and 12. These documents goes to show that Sy.No.177/1 is still an agricultural land. The plaintiffs have utterly failed to prove that the layout has been formed by defendant Nos.1 and 4 in land Sy.No.177/1 measuring 1 acre 21 guntas consisting of 27 sites and also have provided a road connecting Whitefield main road and Mahadevapura to Kaggadasapura on southern and northern sides, further the road connecting entire layout. Therefore, for these reasons, this Court answered Issue No.1 in the Negative.
16. ISSUE Nos.2 & 3 : These issues are inter connected and depending on each other. Therefore, to avoid repetition of discussion, they are taken up jointly for consideration.
46 O.S.No.257/2005
The plaintiffs contended that Sy.No.1771/1 measuring 1 acre 21 guntas of Mahadevapura village i.e., scheduleA property belongs to defendant No.1. The defendant No.1 being the owner has executed registered General Power of Attorney on 23/09/1991 in the name of the defendant No.4. The General Power of Attorney executed is coupled with interest for consideration and it was accompanied with an agreement to sell the land Sy.No.177/1. The defendant No.1 also executed an affidavit affirming on oath having conveyed title to the land in the name of the defendant No.4. On the basis of the documents executed by defendant No.1, the defendant No.4 formed a layout consisting of 27 sites by providing connecting and interior roads. Further, defendant No.4 sold the sites personally and through his Power of Attorney to some of the plaintiffs and some of the vendors of the plaintiffs. After sale of sites formed in Sy.No.177/1, defendant Nos.1 and 4 47 O.S.No.257/2005 have lost their right, title and interest in the property. Thus being the circumstances, defendant No.4 executed the sale deed in respect of Sy.No.177/1 measuring 1 acre 21 guntas on 17/11/2004 in favour of defendant No.5. After sale of sites formed in the layout of Sy.No.177/1 to various persons including plaintiffs and vendors of plaintiffs, defendant No.4 has no right to execute the sale deed in respect of the scheduleA property in the name of defendant No.5. On the basis of the sale deed, defendant No.5 will not get any right, title and interest. The sale deed is not binding on the purchasers of the various sites formed in Sy.No.177/1. On the otherhand, defendant No.1 contended that she being the owner of Sy.No.177/1 measuring 1 acre 21 guntas has executed registered General Power of Attorney in favour of defendant No.4 and he has purchased scheduleA property for the purpose of formation of residential layout. The 48 O.S.No.257/2005 defendant No.4 after formation of layout, he might had executed registered sale deeds in respect of 1 acre 21 guntas of land in the name of various site owners, who purchased 27 sites. The defendant Nos.4 and 5 have categorically stated that Sy.No.177/1 measuring 1 acre 21 guntas is an agricultural land. Further, defendant No.4 contended that he has not formed any layout in this land and has sold sites to anybody including plaintiff. He further contended that he has sold entire Sy.No.177/1 measuring 1 acre 21 guntas through registered sale deed on 17/11/2004 in favour of defendant No.5. By virtue of sale deed, defendant No.5 got changed khatha in his name and is in possession and enjoyment of the entire land. The defendant No.5 also in his pleadings contended that he purchased agricultural land of Sy.No.177/1 and he got khatha in his name and is in possession. In land Sy.No.177/1, no layout has been formed by 49 O.S.No.257/2005 defendant No.4 and sites are sold to various persons including plaintiffs.
17. To substantiate the contentions, plaintiffs relied on evidence of PW1 to 5 and the documents. The defendant No.5 alone entered into witness box and has given evidence and produced documents. On going through the available materials on record, this Court finds that plaintiffs produced certified copy of sale deed dated 26/04/1999 (Ex.P.1), sale deed dated 08/12/1995 (Ex.P.116) in respect of schedule 'B' property i.e., site No.7, sale deed dated 04/10/2000 (Ex.P.12) in respect of schedule 'C' property i.e., site No.3. sale deed dated 04/10/2000 (Ex.P.38) in respect of schedule 'D' property i.e., site No.5(a), sale deed dated 21/10/2000 (Ex.P.46) in respect of schedule 'E' property i.e., site No.1, sale deed dated 04/10/2000 in respect of schedule 'F' property i.e., site No.22(b). The plaintiffs have 50 O.S.No.257/2005 produced sale deeds at Ex.P.1, Ex.P.12, Ex.P.38, Ex.P.46, Ex.P.60, Ex.P.67, Ex.P.68, Ex.P.72, Ex.P.73, Ex.P.75, Ex.P.93, Ex.P.114, Ex.P.116 and Ex.P.117. On perusal of these documents, it reveals that Ex.P.1 and Ex.P.116 pertains to site claimed by plaintiff No.1. One K.Krishnan purchased site No.7, khatha No.167 situated at Mahadevapura notified area, K.R.Pura, Bangalore i.e., schedule 'B' property from defendant No.1 through her General Power of Attorney holder i.e., defendant No.4 on 08/12/1995 (Ex.P.116). Thereafter, said K.Krishnana sold it on 26/04/1999 in favour of plaintiff No.1 (Ex.P.1). On perusal of Ex.P.12, it reveals that plaintiff No.2 purchased site No.3 i.e., schedule 'C' property on 04/10/2000 from defendant No.4 through his Power of Attorney holder Mrs. P.S.Chittaranjan Kumari. On perusal of Ex.P.38, it reveals that plaintiff No.3 purchased site No.5(a) i.e., schedule 'D' property on 04/10/2000 from defendant No.4 through his 51 O.S.No.257/2005 General Power of Attorney holder S.Vimala. On perusal of Ex.P.46, it reveals that plaintiff No.4 purchased site No.1 i.e., schedule 'E' property on 21/10/2000 from defendant No.4 through his General Power of Attorney holder M.Venkataramana. On perusal of Ex.P.60 and Ex.P.61, it reveals that one S.A.V.Mohan (not party to the suit) purchased site No.27, khata No.382/1 of Mahadevapura from one Mohanbabu on 29/03/2004. Further, the said Mohanbabu purchased it from Smt.Rajarajeshwari on 17/04/2003, who had purchased the same on 24/10/1998. On perusal of Ex.P.67, it reveals that one R.Hemanthraj purchased site N.23A (not party to the suit and not schedule property) from one Madhusudan on 23/07/2007. Further, the sale deed reveals that vendor purchased it from defendant No.1 through her General Power of Attorney holder i.e., defendant No.4 on 08/12/1995. On perusal of Ex.P.68, it reveals that plaintiff No.6 52 O.S.No.257/2005 purchased site No.5B, khatha No.215, property No.177/1 situated at Mahadevapura (nonschedule property) from one Chandrappa on 02/09/2004. this sale deed further reveals that vendor purchased the same from defendant No.4 through his General Power of Attorney holder S.Sripathi on 02/07/2004. On perusal of Ex.P.72, it reveals that one Sarala Paramanandan purchased site No.16 (not party to the suit and nonschedule property) on 11/04/2001 from defendant No.1 through her General Power of Attorney holder G.Narendra Kumar. On perusal of Ex.P.73, it reveals that one L.Pavan purchased northern portion of site No.6 i.e., schedule 'H' property, khatha No.824, property No.177/1 of Mahadevapura (not party to the suit) o 27/09/2004 from N.Jayarama Reddy. Further, it reveals that vendor purchased it from defendant No.4 through his General Power of Attorney holder K.Tulasi. On perusal of Ex.P.93, it reveals that plaintiff No.10 53 O.S.No.257/2005 purchased site No.12 (nonschedule property ), khata No.382/1, situated at Mahadevapura village from O.Dhananjaya. Further, it reveals that he has purchased the same on 19/02/1992. On perusal of Ex.P.94, it reveals that one Sathyanarasan purchased site No.17 (not party to the suit and non schedule property) from defendant No.1 through her General Power of Attorney holder i.e., defendant No.4 on 18/12/1995. On perusal of Ex.P.95, it reveals that plaintiff No.8 purchased site No.13 (non schedule property), khata No.382/1 of Mahadevapura village from defendant No.1 through her Power of Attorney holder defendant No.4 on 12/12/1993. On perusal of Ex.P.114, it reveals that plaintiff No.13 purchased site No.12 (nonschedule property) on 19/02/1992 from defendant No.1 through Power of Attorney holder i.e., defendant No.4. On perusal of Ex.P.117, it reveals that plaintiff No.14 purchased site No.8 (nonschedule property) 54 O.S.No.257/2005 on 13/08/1997 from one V.Venkatesh, who purchased it on 27/08/1992.
18. All the sale deeds stated above are certified copies. By relying on these certified copies of the sale deeds, it is contended by the plaintiffs that defendant Nos.1 to 4 by executing the above mentioned sale deeds have lost their right, title and interest in respect of schedule 'A' property. The defendant No.4 in the pleadings has specifically contended that he has not executed any sale deed in respect of schedule 'A' property except executing the sale deed in the name of defendant No.5. The sale deeds produced by the plaintiffs reveals that sale deeds came to be executed either by defendant No.4 as Power of Attorney holder of defendant No.1 or General Power of Attorney holder of defendant No.4. The initial burden is on the plaintiff to establish that defendant No.4 as a General Power of Attorney 55 O.S.No.257/2005 holder of defendant No.1 executed above mentioned sale deeds either by himself or through his General Power of Attorney in the names of plaintiffs or vendors of plaintiffs. The plaintiffs have not sought for any declaration of their right, title and interest in respect of the property purchased by them. It is contended by the defendant No.5 that defendant No.4 acted as General Power of Attorney holder of defendant No.1, therefore defendant No.4 cannot subdelegate the authority given to him by defendant No.1 to any person. In this regard, he relied on the case laws reported in :
1. (1975) 4 S.C.C 404 in the case of Gurnam Singh and Ors. vs Surjit Singh and Ors.,
2. AIR 1939 Allahabad 188 in the case of B.Mahinder Das V/s P.Mohan Lal and others.
(a) Contract Act (1872), Ss.190 and 194 Principal and agent Agent has no power to appoint agent without authority from his principal except under certain circumstances 56 O.S.No.257/2005 Bank appointed agent to lease out housesUnder the circumstances power to appoint agent held could be inferred.
On going through the case law, it reveals that Power of Attorney holder has to discharge duties in terms of authority given. He cannot subdelegate the authority given to him by the executant of the General Power of Attorney without his authorising to subdelegate the power to 3rd party. In this case, the defendant No.5 himself has produced certified copy of Power of Attorney at Ex.D.6. On perusal of this document, it reveals that executant of General Power of Attorney authorized the holder of Power of Attorney to constitute, nominate, appoint his lawful attorney or attorneys on behalf of executant or on behalf of the holder of Power of Attorneys to do the act, deeds and things mentioned in the Power of Attorney. This document itself states that holder of the Power of Attorney is authorised to subdelegate 57 O.S.No.257/2005 the powers entrusted to him by executant. Therefore, the contention of the defendant No.5 in this regard cannot accepted.
19. The defendant No.5 produced sale deed (Ex.D.1), MR No.30/20042005 (Ex.D.2). On perusal of these two documents, it reveals that defendant No.5 purchased Sy.No.177/1 measuring 1 acre 21 guntas i.e., scheduleA property from defendant Nos.1 to 3 through the General Power of Attorney holder i.e., defendant No.4 on 17/11/2004. Further, on the basis of sale deed, the name of defendant No.5 has been ordered for mutating in the revenue records of the land.
20. The counsel for plaintiff relied on the case law reported in AIR 1973 Mysore 276 in the case of Azeezulla Sheriff and others V/s Bhabhutimu.
(C) Registration Act (16 of 1908), S.47, S.49 A compulsorily registrable sale deed executed 58 O.S.No.257/2005 earlier in point of time, will when registered, prevail over the subsequent sale deeds even though such latter deeds were registered at an earlier point of time.
AIR 1926 Madras 39 in the case of M.K.Muhammad Batch Sahib V/s Arunachalam Chettiar.
(C) Registration Act (2 of 1916), S.47 P's deed executed after but registered before D's deed in respect of the same property - D fraudulently delaying registration and misleading P D's deed should not be given priority.
On going through the case law relied by the plaintiffs, it can be seen that any deed compulsorily registrable one is executed at a earlier point of time. After its registration, it will prevail over the subsequent deeds though such subsequent deed were registered at a earliest point of time. In the present case, all the sale deeds produced by the plaintiffs reveals that they are registered deeds 59 O.S.No.257/2005 executed in the name of the plaintiffs or their vendors much prior to the sale deeds of defendant No.5. The sale deeds of the plaintiffs are executed in respect of bit of land in Sy.No.177/1 in respect of entire 1 acre 21 guntas of Sy.No.177/1. Further, the sale deeds of the plaintiffs executed by defendant No.4 as a General Power of Attorney holder of defendant No.1 or agent of defendant No.4. The sale deed of defendant No.5 also executed by the General Power of Attorney holder of defendant Nos.1 to 3 i.e., defendant No.4. Once sale in respect of any bit of land in Sy.No.177 is made through registered document by a competent person, the owner will lose all his right, title and interest in respect of the properties sold and the right, title and interest will be created in the name of the purchasers of the property. Thus being the circumstances, defendant No.4 being a power of attorney holder of owner of scheduleA property has sold scheduleA property in 60 O.S.No.257/2005 bits. Subsequent to alienation of scheduleA property in bits, the owner has lost all right, title and interest in the property. Further, when defendant No.1 has lost her title and interest in scheduleA property, she or her Power of Attorney cannot execute another sale deed in respect of sold property. The subsequent purchaser i.e., defendant No.5 will not get any right, title and interest by virtue of sale deed (Ex.D.1) because when defendant No.1 herself has no right, title and interest in the scheduleA property, the defendant No.5 being the subsequent purchaser from defendant No.1 will not get better right, title and interest in respect of scheduleA property. Therefore, this Court finds that after execution of sale deeds in respect of scheduleA property by defendant No.4 as General Power of Attorney holder of defendant No.1, the owner of scheduleA property lost right, title and interest in it and at the same time, the defendant 61 O.S.No.257/2005 No.1 has no right, title and interest in respect of scheduleA property and cannot convey the same in the name of defendant No.5, the sale deed in the name of defendant No.5 will not bind the plaintiffs. Therefore, for these reasons, this Court answered Issue Nos.2 and 3 in the Affirmative.
21. ISSUE NOs.4 & 5 : These two issues are interconnected, as such they are taken up jointly for consideration.
It is the case of the plaintiffs that scheduleA property situated within the limits of Mahadevapura, K.R.Puram Hobli, Bengaluru East Taluk. Schedule A property totally measures 1 acre 21 guntas belongs to defendant No.1. The defendant No.1 authorized defendant No.4 for formation of layout and sites. The defendant No.4 as a General Power of Attorney holder, formed layout and sold sites to various persons including plaintiffs. After purchase 62 O.S.No.257/2005 of sites formed in scheduleA property, plaintiffs and other purchasers have applied for khata in their names. CMC, Mahadevapura assessed the sites of plaintiffs and other purchasers of scheduleA property to tax. Thereafter, they have put up residential houses. ScheduleA property now comes within the limits of Bruhath Bengaluru Mahanagara Palike. The entire layout formed in scheduleA property now vest with Bruhath Bengaluru Mahanagara Palike for administrative purpose and also for providing basic amenities. It is further contended by the plaintiffs that subsequent to sale of sites formed in scheduleA property, defendant Nos.1 to 4 sold entire scheduleA property to defendant No.5 through sale deed dated 17/11/2004. On the strength of said sale deed and in collusion with revenue officials, managed to get khatha and his name entered in the RTC. The scheduleA property is not an agricultural land. The buildings are 63 O.S.No.257/2005 constructed, civic amenities are provided, Bruhath Bengaluru Mahanagara Palike is collecting taxes. Therefore, the revenue officials have no right or authority over the scheduleA property for transfer of mutation or maintenance of record of rights in respect of scheduleA property. The defendant No.8 in his pleadings contended that layout claimed by plaintiffs is unauthorized, illegal and Bruhath Bengaluru Mahanagara Palike have not provided any civic amenities and not assessed for tax by Bruhath Bengaluru Mahanagara Palike. The defendant No.4 contended that he has not formed any layout in scheduleA property and has not sold any site formed in scheduleA property to plaintiffs. It is contended by defendant No.4 that as a General Power of Attorney holder of defendant No.1, he sold entire land Sy.No.177/1 measuring 1 acre 21 guntas to defendant No.5. The defendant No.5 also relied fact that no layout has been formed and sites were 64 O.S.No.257/2005 sold to plaintiffs and others in scheduleA property. He has purchased entire scheduleA property through sale deed from defendant Nos.1 to 4. On the strength of sale deed, khatha has been mutated and RTC are made in his name.
22. On appreciating the material placed on record, this Court finds that scheduleA property is a agricultural land belongs to defendant No.1. The defendant No.4 as a General Power of Attorney of the defendant No.1 sold bit of land to plaintiffs or their vendors. Further, there is no cogent and reliable documentary evidence to show that the layout has been formed in scheduleA property with sanction from competent authority. The plaintiffs relied on sketch annexed (Ex.P.48). On perusal of this document, it reveals that sketch annexed to Ex.P.48 is not a sanctioned plan. The evidence of PW1 to 5 discloses that scheduleA property is an agricultural 65 O.S.No.257/2005 land. The defendant No.8 though filed written statement, has not contested the claim. It is on plaintiffs to establish their claim with cogent documentary evidence. The plaintiffs have not placed any acceptable and reliable document to show that layout has been formed in scheduleA property. Simply scheduleA property comes within the jurisdiction of Bruhath Bengaluru Mahanagara Palike, it cannot be said that land is vested with Bruhath Bengaluru Mahanagara Palike for all purposes including collecting taxes, providing civic amenities etc. The defendant Nos.9 to 12 being revenue officials, they are competent to value land revenue matters under the provisions of Karnataka Land Revenue Act. Any agricultural land is transferred through a registered deed of conveyance. It is the duty of the concerned revenue officer to transfer the khatha in the name of the purchaser and enter his name in the RTC etc., in accordance 66 O.S.No.257/2005 with provisions of Karnataka Land Revenue Act. The scheduleA property is an agricultural land, scheduleA property is not converted from agriculture into nonagricultural purpose. Under such circumstances, it cannot be said that schedule A property is vested with Bruhath Bengaluru Mahanagara Palike for administrative purpose and for providing basic amenities. At the same time, the defendant Nos.9 to 12 being competent authorities, have effected mutation and maintaining revenue documents under the provisions of Karnataka Land Revenue Act. The contention of the plaintiffs as to defendant Nos.9 to 12 have no right or authority over the scheduleA property for the purpose of transfer of mutation etc., cannot be accepted. Therefore, for these reasons, this Court answered Issue Nos.4 and 5 in the Negative.
67 O.S.No.257/2005
23. ISSUE NO.7 : The defendant No.1 contended that she was absolute owner of schedule A property and she executed a registered Power of Attorney in the name of defendant No.4. The defendant No.4 purchased scheduleA property for the purpose of formation of residential layout. In view of this, she had no right, title or interest over the scheduleA property. Further, it is contended that she is not necessary or proper party to the suit. The plaintiffs arrayed defendant Nos.2 and 3, who are unnecessary parties to the proceedings. To substantiate the contention, the defendant No.1 has not entered into witness box to lead evidence.
24. On perusal of the available materials on record, it demonstrate the fact that defendant No.1 was the owner of the scheduleA property, which is not in dispute. Further, defendant No.1 executed Power of Attorney in the name of defendant No.4 in 68 O.S.No.257/2005 respect of scheduleA property. Further, the sale deeds executed in the name of plaintiffs or their vendors and also defendant No.5, reveals that it is the defendant No.1, who sold bit of land in schedule A property through defendant No.4, who is General Power of Attorney holder of the defendant No.1. The defendant No.1 though contended that she sold scheduleA property to defendant No.4, but neither defendant No.1 nor defendant No.4 purchased the sale deed in respect of scheduleA property in the name of defendant No.4. Therefore, it can be said that defendant No.4 as a General Power of Attorney holder of defendant No.1, alienated the scheduleA property. Further, the sale deed of defendant No.5 reveals that it is defendant Nos.1 to 3, who have sold entire scheduleA property to defendant No.5 through their General Power of Attorney holder i.e., defendant No.4. Under these circumstances, it can be said that defendant No.1 is necessary and proper 69 O.S.No.257/2005 party to this suit, because defendant No.1 was the owner of scheduleA property and plaintiffs have sought relief in respect of scheduleA property only. Therefore, the defendant No.1 fails to show that she is not necessary or proper party to the suit and hence, Issue No.7 is answered in the Negative.
25. ISSUE NO.8: This issue is regarding valuation of claim for the purpose of court fee and jurisdiction. The defendant No.4 in para 2 of the written statement contended that plaintiffs have not paid proper and sufficient court fee to claim the relief in the suit. The suit is undervalued and as such unless and until the payment of court fee is determined, plaintiffs cannot proceed with the case. Except filing written statement, the defendant No.5 has not made any effort to substantiate the contention by leading evidence or producing documents. The plaintiffs filed the suit praying for 70 O.S.No.257/2005 declaration and injunction, declaration to the effect that scheduleA property is a layout formed by defendant Nos.1 to 4 and sold sites to plaintiffs and others, thereby they lost their right, title and interest in respect of the scheduleA property. Further, binding nature of sale deed dated 17/11/2004 executed in the name of the defendant No.5 by Power of Attorney holder of defendant Nos.1 to 5 i.e., defendant No.4. Further, the plaintiffs sought for declaration that scheduleA property vest with defendant No.8. Further, defendant Nos.9 to 12 have no right or authority to assess scheduleA property for the purpose of effecting transfer of mutation, issuance of the record of rights in the name of defendant No.5 and consequential relief of injunction. The plaintiffs assessed the claim under Section 24(d) and 26(c) of Karnataka Court Fees and Suit Valuation Act and paid court fee of Rs.125/. As far as the payment of court fee is concerned, the 71 O.S.No.257/2005 valuation made and court fee arrayed by the plaintiffs is to be accepted as correct unless contrary is established. The defendant No.4 except filing the written statement by taking contention regarding court fee, has not placed any reliable evidence to show that valuation made and court fee paid by the plaintiffs is not correct and insufficient. In the absence of proof of this fact, it is held that valuation made and court fee paid by the plaintiffs is sufficient and hence Issue No.8 is answered in the Affirmative.
26. ISSUE NO.6 : It is the case of plaintiffs that they have purchased sites formed in scheduleA property, khata of the property has been transferred in their names and they are paying taxes to municipality/BBMP. Further, they have put up construction on the sites purchases. Thus being the circumstances, an interference for possession and enjoyment of the property purchased by the land 72 O.S.No.257/2005 owner and others, suit for injunction has been filed and the same has been decreed against owner and the person acted on behalf of the owner of the land. Thereafter, they have sold scheduleA property to defendant No.5. The defendant No.5 in colluding with revenue officials, managed to get khatha in his name in respect of scheduleA property though scheduleA property is not an agricultural land and has lost its agricultural character in view of constructions and buildings are made on scheduleA property. The defendant No.5 contended that scheduleA property still is an agricultural land and he being purchaser of the scheduleA property is in possession and enjoyment of the same, his name has been mutated in the revenue records of scheduleA property by revenue authorities.
27. On going through the available materials on record, it reveals that plaintiffs in support of their 73 O.S.No.257/2005 contentions, have produced sale deeds, tax paid receipts, khatha certificates, judgment and decree passed in suit instituted by them against the land owner. The defendant No.5 also produced sale deed, mutation extract, judgment and decree copy of the plaint etc. On appreciating the oral evidence of PWs1 to 5, it reveals that they are in possession of the property purchased in scheduleA property. To disprove the contention of the plaintiffs, nothing worth has been produced except sale deed, mutation extract by defendant No.5. Except defendant No.5, no other defendants contested the suit. On perusal of oral evidence, defendant No.5, who has been examined as DW1, it reveals that DW1 in his cross examination admits the suggestion as to there are 27 houses constructed in scheduleA property. Further, he admits that in scheduleA property, there are sites and road is in existence. However, he asserts that after obtaining injunction order, sites 74 O.S.No.257/2005 and road might have been formed in scheduleA property. The evidence of DW1 is sufficient to say that plaintiffs are in possession of the property/site purchased by them in scheduleA property. On perusal of judgment of O.S.No.8945/2003 (Ex.P.2), O.S.No.8944/2003 (Ex.P.13), O.S.No.8947/2003 (Ex.P.39), O.S.No.8943/2003 (Ex.P.47), it reveals that plaintiffs claiming to be in possession of site purchased by them, filed the suits alleging interference. In this suit, defendant No.5 is not party, but defendant Nos.1 and 4 are parties. Even the judgment passed in the above said suits is exparte judgments, but it can be said that plaintiffs of these suits are held to be in possession of the sites purchased by them. The defendant No.5 also produced judgment passed in O.S.No.15143/2005 (Ex.D.3). On perusal of this document, it reveals that defendant No.5 filed the suit for injunction against M.Krishnappa Reddy and three others 75 O.S.No.257/2005 alleging illegal attempt for dispossessing him from scheduleA property. On perusal of the judgment, it reveals that plaintiff No.1 of this suit filed application for impleading in the said suit, but same came to be dismissed. None of the defendants in the said suit appeared and contested the claim. It is also an exparte judgment. As earlier discussed, DW 1 himself admits that houses are constructed in scheduleA property. However, he expressed his lack of knowledge regarding possession held by the plaintiffs and other purchasers of the sites in scheduleA property. The evidence of PW1 to 5 coupled with documents establishes the fact that plaintiffs are in possession of the sites purchased by them in scheduleA property. Further, during the course of discussion on Issue Nos.2 and 3, this Court held that sale deed of the plaintiffs and their vendors in respect of sites formed in scheduleA property is prior to the sale deed of the defendant of 76 O.S.No.257/2005 defendant No.5 in respect of scheduleA property. The vendor of the defendant No.5 have no right, title and interest for executing the sale deed in respect of scheduleA property in the name of the defendant No.5. Therefore, the defendant No.5 will not get any right, title and interest on the basis of the sale deed executed by defendant No.4 on behalf of defendant Nos.1 to 3. The plaintiffs proved that they are in possession of schedule property. Therefore, their possession is to be protected by way of injunction. Therefore, Issue No.6 is answered in the Affirmative.
28. ISSUE NO.9: In view of reasons, findings given in the above made discussion, this Court comes to the conclusion that scheduleA property belongs to defendant No.1 and she executed Power of Attorney in the name of defendant No.4 in respect of scheduleA property. The defendant No.4 as a Power of Attorney holder, sold the bits of land in schedule 77 O.S.No.257/2005 A property to plaintiffs/vendors of plaintiffs and others by executing a registered sale deed. The plaintiffs/purchasers of bit of land in scheduleA property have got khatha in their names and put up buildings on the purchased sites. The scheduleA property is an agricultural land bearing Sy.No.177/1 measuring 1 acre 21 guntas of Mahadevapura village. The plaintiffs though purchased bit of land in scheduleA property, but the scheduleA is an agricultural land. The plaintiffs fails to prove that defendant Nos.1 to 4 have formed layout in scheduleA property consisting of sites and providing road etc. Further, by executing a registered sale deed in the name of plaintiffs/their vendors, defendant No.1 has lost right, title and interest in respect of scheduleA property. Therefore, selling entire scheduleA property through registered sale deed dated 17/11/2004 in the name of defendant No.5 by defendant Nos.1 to 3 through Power of 78 O.S.No.257/2005 Attorney holder ie., defendant No.4 subsequently will not confer any right, title and interest in the name of defendant No.5. The plaintiffs fails to prove that scheduleA property being a layout vest with defendant No.8. Further, the plaintiffs also fails to prove that defendant Nos.9 to 12 have no right or authority for assessing scheduleA property for the purpose of effecting transfer of mutation, entered the name of defendant No.5 in RTC. Further, the plaintiffs establish the fact that they are in possession of scheduleB to H properties/sites. The plaintiffs though purchased different extent of land in scheduleA property, but they sought relief in respect of scheduleA property only. Therefore, the plaintiffs are having common interest in the subject matter of the suit. Therefore, the suit filed in representative capacity by the plaintiffs is maintainable. The plaintiffs proved their possession and enjoyment over the sites purchased in schedule 79 O.S.No.257/2005 A property. The plaintiffs have proved the interference from defendant No.5. Therefore, the plaintiffs are entitled for injunctive relief and hence, this Court proceed to pass the following :
ORDER Suit partly decreed.
The defendants or any person on their behalf are hereby restrained from causing interference/obstruction for possession and enjoyment of the schedule properties by plaintiffs and other site holders.
Under the circumstances of the case, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her and corrected, revised, signed and then pronounced by me in the open Court on this the 6th day of February, 2021.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.
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80 O.S.No.257/2005
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFFS:
PW.1 - S.Sridhara Reddy
PW.2 - P.V.Sathyanarayana
PW.3 - P.V.Satya Durga Devi
PW.4 - Bokka Srinivasa Rao
PW.5 - K.C.Gangadharan
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFFS:
Ex.P.1 Certified copy of sale deed dtd 26/04/1999
Ex.P.2 Certified copy of judgment and decree
passed in O.S.No.8945/2003
Ex.P.3 Encumbrance Certificate
Ex.P.4 Letter issued by BDA
Ex.P.5 Acknowledgement issued by BDA
Ex.P.6 Tax paid receipt
Ex.P.7 Demand register extract for year 2005
Ex.P.8 Demand bills issued by BWSSB
Ex.P.9,10 Electricity bill and receipt Ex.P.11 LPG bill Ex.P.12 Certified copy of sale deed dtd 04/10/2000 Ex.P.13 Certified copy of judgement and decree in O.S.No.8944/2003 Ex.P.14 Copy of ration card Ex.P.15 Acknowledgement issued by BDA Ex.P.16 Copy of letter sent by Kranthi to LAO Ex.P.17 Encumbrance Certificate Ex.P.18,19 Electricity demand bill and receipt Ex.P.20 Certified copy of self assessment extract for 81 O.S.No.257/2005 the year 2005 Ex.P.21 Demand bill of BWSSB Ex.P.22 to Self assessment tax paid receipts Ex.P.25 Ex.P.26 to Tax paid receipts Ex.P.28 Ex.P.29 Assessment extract for the year 2005 Ex.P.30 Demand bill issued by BWSSB Ex.P.31 to Self assessment of tax declaration Ex.P.34 Ex.P.35 to Tax paid receipts Ex.P.37 Ex.P.38 Certified copy of sale deed dtd 04/10/00 Ex.P.39 Certified copy of judgment and decree in O.S.No.8947/2003 Ex.P.40 Special Power of Attorney dtd 20/01/2003 Ex.P.41,42 Electricity demand bill and receipt Ex.P.43 Acknowledgement issued by BDA Ex.P.44 Letter sent by Sathyanarayana dtd 16/11/2003 to LAO Ex.P.45 Encumbrance Certificate Ex.P.46 Certified copy of sale deed dtd 20/10/2000 Ex.P.47 Certified copy of judgment and decree in O.S.No.8943/2003 Ex.P.48 Copy of letter sent by Shankar to LAO Ex.P.49 Demand register extract Ex.P.50 Encumbrance Certificate Ex.P.51 Demand bills issued by BWSSB Ex.P.52 to LPG gas bills Ex.P.54 Ex.P.55 to Tax paid receipt under self assessment Ex.P.58 scheme Ex.P.59 Acknowledgement issued by BDA Ex.P.60 Certified copy of sale deed dated 29/03/2004 Ex.P.61 Certified copy of sale deed dated 82 O.S.No.257/2005 17/04/2003 Ex.P.62,63 Electricity demand bill and receipt Ex.P.64 Certified copy of sale deed dtd 24/10/1991 Ex.P.65,66 Electricity payment receipt and LPG receipt Ex.P.67 Certified copy of sale deed dtd 23/07/2007 Ex.P.68 Certified copy of sale deed dtd 02/09/2004 Ex.P.69 Certified copy of sale deed dtd 31/03/1994 Ex.P.70,71 Electricity demand bill and receipt Ex.P.72 Certified copy of sale deed dtd 11/04/2001 Ex.P.73 Certified copy of sale deed dtd 27/09/2004 Ex.P.74 Certified copy of ordersheet in O.S.No.15143/2005 Ex.P.75 Certified copy of judgment, decree, application U/o I R 10 and objections Ex.P.76 to Photos Ex.P.91 Ex.P.92 CD Ex.P.93 Certified copy of sale deed dtd 22/09/2000 Ex.P.94 Certified copy of sale deed dtd 18/12/1995 Ex.P.95 Certified copy of sale deed dtd 22/12/1993 Ex.P.96 Copy of legal notice dtd 28/12/2004 Ex.P.97 Postal receipts Ex.P.98 to Postal acknowledgement of defendants Ex.P.101 Ex.P.102 UCP Ex.P.103 Application filed before BBMP under RTI Act.
Ex.P.104 Covering letter by Information officer on
application
Ex.P.105 Certified copy of meeting proceedings held
on 05/10/1996
Ex.P.106 Tax paid receipt
Ex.P.107 Covering letter dtd 09/01/2012 issued by
Information Officer of BBMP
Ex.P.108 Khatha certificate
Ex.P.109 Khatha extract
83 O.S.No.257/2005
Ex.P.110, Khatha certificate and khatha extract of Ex.P.111 site No.4 in Sy.No.177/1 Ex.P.112, Khatha certificate and kahtha extract of Ex.P.113 site No.12 in Sy.No. 177/1 Ex.P.114 Certified copy of sale deed dtd 19/02/1992 Ex.P.115 Sanctioned plan Ex.P.116 Certified copy of sale deed dtd 08/12/1995 Ex.P.117 Certified copy of sale deed dtd 13/08/1993 WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 - L.Muniswamy DOCUMENTS PRODUCED ON BEHALF OF DEFENDANTS:
Ex.D.1 Original sale deed dtd 17/11/2004 Ex.D.2 Certified copy of MR extract bearing MR NO.30/20042005 Ex.D.3,4 Certified copy of judgment and decree in O.S.No.15143/2005 Ex.D.5 Certified copy of PCR 44/2005 Ex.D.6 Certified copy of GPA dtd 16/09/1991 (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.
***** 84 O.S.No.257/2005 85 O.S.No.257/2005