Bangalore District Court
V. Srinivas vs ) Smt.Shakuntalamma on 4 October, 2021
KABC010057211996
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 4th day October, 2021
Present
Smt. SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.3568/1996
Plaintiff: V. Srinivas
s/o Late Venkatappa
aged about 61 years
r/at Bilekahalli village
Begur hobli
Bengaluru South Taluk.
(By Sri H.V. Devaraj, Adv.)
Vs.
Defendants: 1) Smt.Shakuntalamma
w/o Munivenkataswamy
major
2) Srinivas (Dead by LRs)
(a) Smt.Manjula w/o Late Srinivas
Aged about 40 years
(b) Deepika d/o Late Srinivas
aged about 23 years
(c) Ramya d/o Late Srinivas
aged about 18 years
2(a) to (c) are r/at Bilekahalli
village, Begur hobli, Bengaluru
2 O.S.No.3568/1996
South taluk.
3) Lakshminarayana
aged about 22 years
No.2 & 3 are son of late Muni
Venkataswamy, Bilekahalli
village, Begur hobli
Bengaluru South Taluk.
4) Smt. Preethi
w/o Lakshminarayana
aged about 27 years
r/at "Chowdeshwari Nilaya"
No.219, Hulimavi
Bannerughatta Road
Bengaluru-560 076.
{By Sri Prakasha, K.M., Adv. for
D.1, 3; Sri M. Ashwathanarayana
Reddy, Adv. for D.4; D.2- Dead
and Sri K.R. Bharadwaj, Adv. For
LRs of D.2(a),(b),(c)}
Date of institution of the suit 03.06.1996
Nature of the suit For declaration and
permanent injunction
Date of the commencement 04.08.2015
of recording of evidence
Date on which the judgment 04.10.2021
Pronounced
Total duration Years Months Days
25 04 01
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration of his ownership over the suit schedule property by way of adverse 3 O.S.No.3568/1996 possession and for consequential relief of permanent injunction.
2. The brief facts leading to the plaintiff's case are as under:-
The subject matter of the litigation is detailed in schedule of the plaint which is an immovable property bearing No.22 measuring 33 guntas situate at Bilekahalli village, Begur hobli, Bengaluru South Taluk. The plaintiff has stated that the suit schedule property was belonging to the grand-father of defendant Nos.2 & 3- K. Thimmaiah which was a wet land and he left behind him his last WILL and testament dated 14.09.1972 bequeathing the suit schedule property among other properties and the defendants No.2 and 3 are said to be the beneficiaries under the said WILL having succeeded to the said properties. It is further stated that since defendant No.2 & 3 were minors at the time of execution of the said WILL, the defendant No.1 was appointed as their guardian as she being their natural mother. The plaintiff has further stated that defendant No.1 for self on behalf of defendant Nos.2 & 3 entered into an agreement of sale with respect to the suit schedule property on 06.04.1977 for a sale consideration amount of Rs.8,250/- in favour of 4 O.S.No.3568/1996 the father of the plaintiff by receiving an advance amount of Rs.1,250/- from him. It is further stated that thereafter the plaintiff's father paid a sum of Rs.3,000/- to her which was also acknowledged by the defendant Nos.1 to 3 and in pursuance of the said sale agreement, the plaintiff's father was put in possession of the schedule land and continued in its possession and thereafter the plaintiff claims to be in possession of the schedule property. The plaintiff has further stated that his father had filed application before the Tahasildar on 13.01.1999 for entering his name to the RTC extracts in cultivator's column from 07.07.1978 which was allowed after holding necessary enquiry on 28.05.1984. It is further stated that being aggrieved by the said order the defendants along with other brother of defendant Nos.2 & 3 said to have filed Appeal before the Asst. Commissioner, Bengaluru in RA No.10/84-85 which was dismissed on 21.12.1987 and thereby the plaintiff's father continued to be in possession and enjoyment of the suit land till his death and after his death the plaintiff claims to be in continuous possession of the suit schedule property for the last more than 18 years. It is further stated that the defendant No.1 as the guardian of defendant Nos.2 & 3, entered into the 5 O.S.No.3568/1996 above said sale agreement and in part performance of the said agreement the plaintiff claims to be in possession of the schedule property. The defendant No.1 also said to have not denied the receipt of advance amount from the plaintiff's father in the proceedings which were held before the Tahasildar and also in the proceeding initiated under the Guardian and Wards Act and therefore the said sale agreement is not a void document but valid and binding on defendant Nos.2 & 3 as well. It is further stated that even the said agreement recites about delivery of possession of the schedule property to the plaintiff's father and thereafter the plaintiff's possession over the schedule property. It is further urged by the plaintiff that the remedy available to the defendants to avoid the said agreement and to get back the possession of the schedule property in accordance with law and not otherwise and therefore until the contract is avoided on the grounds of fraud, misrepresentation, etc., it is valid and binding on the defendants. He has further stated that the plaintiff has now sought for permanent injunctive relief apart from the other reliefs and also seeking protection from his illegal dispossession. He has further urged that his father came 6 O.S.No.3568/1996 into possession of the schedule property under the said sale agreement since 07.04.1977 and as such the said contract is enforceable and therefore the plaintiff has got a right to sue for specific performance of the said sale agreement and get the sale deed executed in his favour and also he has a right to protect his possession by way of adverse possession. It is further stated that the protection of possession flowing from contract is the essence of Section 54-A of the Transfer of Property Act. It is however alleged that defendant Nos.2 & 3 failed and neglected to perform their part of contract only after receipt of legal notice dated 05.06.1995, because till such time on one or the other reason they went on taking time to execute the sale deed though the plaintiff was ever ready and willing to perform his part of contract by paying remaining balance sale consideration of Rs.250/- to the defendant and therefore the plaintiff has urged that under the said sale agreement and also on the basis of his continuous possession over the schedule property, he is entitled to protect the said possession and as the possession of the plaintiff has been for more than 12 years he claims to have acquired title by way of adverse possession. It is further alleged that after the death of his 7 O.S.No.3568/1996 father he repeatedly requested the defendants to execute the sale deed in his favour as per the terms of agreement but the defendant No.1 assured to execute the sale deed after defendant Nos.2 & 3 attaining majority by but even thereafter the defendants did not comply with the terms of agreement and failed to perform their part of the contract. It is further contended that the defendants have not yet filed any suit for recovery of possession of the schedule property within the period of limitation and even the said stipulated period has already expired and therefore he is entitled to protect his possession over the schedule property. During the pendency of the proceeding the plaintiff got amended the pleadings thereby substituting additional paras at para-8(a) & 8(b) by urging that the defendants have lost their right, title and interest including the right to recover possession of the schedule property as plaintiff since the date of his father from 06.04.1977 has been in possession of the schedule property. It is further stated that the defendants had filed O.S.No.2330/1984 against the plaintiff's father and also against the husband of the defendant No.1 and father of defendant Nos.2 & 3 and also sought for temporary injunction and the said IA was 8 O.S.No.3568/1996 rejected on 16.07.1984. It is further stated that there was an attempt to acquire the schedule property by Vyayalikaval House Building Co-operative Society Ltd. During 1986-87 through SLAO wherein the interest of the plaintiff is reflected and ultimately the said acquisition proceedings reached upto Hon'ble Supreme Court in SLP No.1315 to 80 of 1991 wherein the defendants had continuously and impliedly conceded and recognized the right of the plaintiff over the schedule property and the plaintiff was arrayed in the said proceeding as respondent No.23. It is further stated that ultimately the Hon'ble Supreme Court quashed the land acquisition proceedings as a result of which the plaintiff was restored with the possession of the schedule property and the defendants acquiesced the matter and to their knowledge the plaintiff continued to be in possession of the schedule property without any interference or obstruction. He has further pleaded by way of amendment in para-9(a) to (c) with regard to the valuation of the suit relief and payment of Court fee and also pleaded that during the pendency of the suit defendant Nos.1 & 2 alienated the schedule property without any right, title or interest in favour of the defendant No.4 which was learnt by the plaintiff on 9 O.S.No.3568/1996 16.04.2002 in the proceeding held before the Land Reforms Authority in LRF No.75(c) of 2000-01 initiated by the plaintiff for protection of his possessory title. It is alleged that the defendants have illegally alienated the schedule property during the lis and therefore the said transaction does not get any legal sanctity and therefore the said purchaser came to be impleaded in the suit. It is further stated that the plaintiff had also filed RA 37/2002 U/S 136(2) of the Karnataka Land Revenue Act against the defendant No.4 seeking to set aside the order dated 05.02.1999 passed by the Tahasildar and also filed application U/S 25 of the Act for stay of the said proceeding held in favour of the defendant No.4 and obtained stay on 26.06.2002. For these reasons the plaintiff has sought for a declaratory relief with regard to his title by way of adverse possession and declaration that the sale deed dated 21.11.1998 in favour of the defendant No.4 is not binding on him and for the consequential relief of permanent injunction against the defendants not to interfere with his possession over the schedule property.
3. In pursuance of service of suit summons, defendant Nos.1 to 3 appeared through their counsel. 10 O.S.No.3568/1996 During pendency of the proceeding defendant No.2 died and his LRs came to be impleaded as defendant No.2(a) to 2(c). After amendment the plaintiff impleaded defendant No.4 who was also represented by another counsel. In response to the plaintiff's claim, defendant Nos.1 to 3 filed their written statement denying the claim of the plaintiff. Though they have admitted the fact of execution of the WILL in favour of defendant Nos.2 & 3 by their grand-father and about the appointment of defendant No.1 as guardian of defendant Nos.2 & 3 under the said WILL, but they have categorically denied the claim of the plaintiff that defendant No.1 as the guardian of defendant Nos.2 & 3 entered into the disputed sale agreement dated 06.04.1977 with the plaintiff's father for consideration of Rs.8,250/- and received advance amount of Rs.1,250/- and thereafter additional amount of Rs.3,000/-, etc., as alleged in the plaint. At the very outset it is contended that since the defendants had never executed any such sale agreement in favour of the plaintiff's father there is no question of defendant No.1 acknowledging the receipt of advance consideration amount allegedly paid by the plaintiff's father to her. It is further denied that in pursuance of the said sale 11 O.S.No.3568/1996 agreement the plaintiff's father was given possession of the schedule property and after his death the plaintiff continued to be in possession of the suit property, etc., as alleged. It is further denied that after the execution of sale agreement, on 19.01.1981 the plaintiff's father got effected the mutation entry in his name in the RTC extracts and that the same was challenged by the defendants which was dismissed, etc., as alleged. It is further denied that since the plaintiff's possession over the schedule property is continuous and in part performance of the sale agreement the said transaction is enforceable, etc., as alleged. It is further denied that to protect his possession the plaintiff is entitled to seek permanent injunction against the defendants, etc., as claimed by him. It is further denied that the sale agreement already recites about the delivery of possession of the schedule property to the agreement holder as claimed in the plaint. It is further denied that the defendant Nos.2 & 3 failed to perform their part of contract though the plaintiff was ready and willing to get executed the sale deed in his favour by paying balance consideration amount to them, etc., as alleged in the plaint. They have further denied that the plaintiff has 12 O.S.No.3568/1996 perfected his title over the schedule property by way of adverse possession as claimed by him. It is further denied that the defendant No.1 went on seeking time to execute the sale deed on the ground that the defendant Nos.2 & 3 are to attain majority and that even after they attaining majority the defendants failed to execute the sale deed in favour of the plaintiff as alleged. For these reasons the defendant Nos.1 to 3 at the first instance had sought for dismissal of the suit.
4. The defendant No.4 also filed her written statement denying the claim of the plaintiff and reiterating the contentions raised by defendant Nos.1 to
3. It is denied even by this defendant that the plaintiff's father was put in possession of the schedule property under the disputed sale agreement allegedly executed by defendant Nos.1 to 3 and that defendant No.1 had received advance consideration amount from the plaintiff, etc., as claimed in the suit. It is further denied that the father of the plaintiff or the plaintiff were ever in possession of the schedule property as claimed by the plaintiff. It is the specific defence of the defendant No.4 that the schedule property is the self-acquired property of late Thimmaiah who executed the registered WILL 13 O.S.No.3568/1996 bequeathing not only the suit property but also other properties in favour of defendant Nos.2 & 3 who were represented by defendant No.1 as their minor guardian and one of the sons of defendant No.1- Venkatesh died before attaining majority and the remaining legatees under the WILL i.e., defendant Nos.2 & 3 with the help of defendant No.1 got effected the revenue records in their names with respect to the suit property by virtue of the said WILL. It is further contended by this defendant that the schedule property was acquired by the Vyayalikaval House Building Co-operative Society and thereafter as per the directions of the Hon'ble Supreme Court the acquisition proceeding was quashed and the landlords were permitted to take back the possession of the land by paying compensation amount of Rs.1,46,250/- which defendant No.1 had paid on 17.07.1998 by way of DD and the possession of the schedule property was accordingly delivered to defendant Nos.1 to 3 and thereafter they sold the same to the defendant No.4 on 21.11.1998 under a registered sale deed for a valuable consideration and on the same day they also sold Sy.No.21 measuring 32 guntas of the same village in favour of the mother-in-law of this defendant by name 14 O.S.No.3568/1996 Smt.Jayamma and accordingly by virtue of these sale deeds both these purchasers got changed their names in the revenue records and got converted the suit land and the aforesaid Sy.No.21 for NA use in the year 2011 and all these facts were well within the knowledge of the plaintiff, because this defendant had sought for conversion of the schedule property in the year 2005 itself by paying conversion charges on 03.01.2006 but the plaintiff alleged to have suppressed all these material facts deliberately. Thus defendant No.4 has contended that the plaintiff has acquiesced the said sale deed and conversion order and therefore now he is estopped from claiming any right in respect of the suit property. Further this defendant claims herself to be a bonafide purchaser for value without notice and therefore her right to the schedule property is required to be protected. It is further contended that as per the information furnished by defendant Nos.1 to 3, this defendant learnt about the plaintiff filing a suit for bare injunction in O.S.No.15020/2002 with respect to schedule property which was dismissed for non-prosecution and even this material fact has been suppressed in the present case. It is her further allegation that the present suit has been 15 O.S.No.3568/1996 filed by the plaintiff only to extract money from her as this defendant has purchased the schedule property which is a valuable property and it is already converted to NA use. She has further contended that she has been in lawful possession and enjoyment of the schedule property since the date of its purchase and therefore the plaintiff has no semblance of right or interest over the schedule property. She has further questioned the maintainability of the suit on the grounds that the suit is not maintainable without seeking cancellation of the sale deed executed in her favour and she has also questioned the correctness of the suit valuation made by the plaintiff and the Court fee paid thereon and therefore she has contended that as the schedule property is a non- agricultural land the plaintiff is required to pay Court fee on the market value of the schedule property. She has further contended that the plaintiff had filed RA 37/2002 U/S 136(2) of the Karnataka Land Revenue Act against her seeking to set aside the mutation entry made in her favour which was dismissed on 18.06.2003 against which he preferred revision in RP No.47/2003 which was also dismissed and as such those orders have become final and conclusive since the plaintiff has not challenged the 16 O.S.No.3568/1996 same. She has further sought to dismiss the suit on the ground that it is hopelessly barred by limitation since her sale deed is dated 21.11.1998 and therefore the prayer sought for by the plaintiff for declaration by way of amendment is barred by limitation. It is further contended that even the sale agreement dated 06.04.1977 claimed by the plaintiff is hit by Section 82 of the Hindu Minority and Guardians Act as the said transaction was with respect to minor's property and for all these reasons defendant No.4 has also sought for dismissal of the suit.
5. After the plaintiff amending the plaint, defendant Nos.1 to 3 filed additional written statement denying the allegations of the plaintiff that by virtue of the disputed sale agreement the possession of the schedule property was handed over to the plaintiff and that the defendant Nos.1 to 3 have not made any efforts to recover the possession of the suit schedule property from either the plaintiff or from his father during his life time. They have further denied that by way of adverse possession the plaintiff has perfected his title to the suit schedule property as claimed by him. They have denied his additional pleading to the effect that even in 17 O.S.No.3568/1996 acquisition proceeding initiated by the Govt. the interest of the plaintiff was reflected and that these defendants had recognized his right over the schedule property even before the Hon'ble Supreme Court, etc., as claimed by him. They have however admitted the fact that the Hon'ble Supreme Court has quashed the acquisition proceedings but denied that in view of the said order of the Hon'ble Supreme Court the plaintiff was restored with the possession of the suit property as alleged by him. Thus the defendant Nos.1 to 3 have denied that the plaintiff is entitled to the declaratory relief as sought for. They have also questioned the correctness of the Court fee paid by the plaintiff on the additional declaratory relief sought for by him It is the contention of these defendants that since the plaintiff has no right with respect to the suit schedule property nor he was in possession of the same these defendants have every right to deal with their property in any manner they like and accordingly they have sold the schedule property in favour of defendant No.4 under a registered sale deed and as such the said sale transaction is legal and valid. For these reasons defendant Nos.1 to 3 have also sought 18 O.S.No.3568/1996 for dismissal of the suit even with defendant No.4 on the amended pleading of the plaintiff.
6. On the rival contentions of the parties, the following issues and addl. Issues came to be framed:-
Issues framed by CCH-16 on 11.08.2004
1) Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of the suit?
2) Whether the plaintiff further proves that the defendants are interfering with the possession of the suit schedule property?
3) Whether the plaintiff is entitled for relief of permanent injunction as prayed for?
4) What order or decree?
Issues framed by CCH-8 on 06.09.2014
1) Whether plaintiff proves that he is lawful owner in peaceful possession and enjoyment of suit schedule property having perfected his title under the plea of adverse possession?
2) Whether plaintiff proves that the sale
deed dated 21.11.1998 executed by
defendant No.1 & 2 in favour of
19 O.S.No.3568/1996
defendant No.4 is not binding on his
interest?
3) Does plaintiff proves that defendants are interfering and causing obstruction over his alleged possession in respect of schedule property?
4) Whether plaintiff is entitled for the relief of permanent injunction?
5) Whether defendant Nos.1 to 3 prove that this bare injunction suit is not maintainable without filing suit for specific performance of contract in respect of sale agreement dated 06.04.1977?
6) Whether defendants prove that court fee paid on the plaint is insufficient and improper?
7) What order or decree?
Addl. issues framed by CCH-8 on 08.06.2015
1) Whether defendant No.4 proves that the suit schedule property was the self acquired property of late Thimmaiah and he had executed a registered will in favour of his grand-sons, who are sons of 1st defendant and 1st defendant 20 O.S.No.3568/1996 was minor guardian for his 3 sons, who were minors at that time?
2) Whether defendant No.4 proves that in view of quashing of acquisition of suit schedule property by Hon'ble Apex Court for Vyalikaval H.B. Co-operative Society wherein 1st defendant had paid a sum of Rs.1,46,250/- on 17.07.2008 and possession has been delivered to defendant No.3 in respect of property in question?
3) Whether defendant No.4 proves that defendant No.1 to 3 have sold suit schedule property to her mother-in-
law under sale deed dated 21.11.1998 and she converted the said land to non-agricultural use?
4) Whether defendant No.4 proves that she is the bonafide purchaser for value?
5) Whether defendant No.4 proves that suit is not maintainable without seeking relief regarding her sale deed for cancellation?
6) Whether defendant No.4 proves that court fee has to be paid U/S 24(a) of KCF and SV Act?
21 O.S.No.3568/1996
7) Whether defendant No.4 proves that suit is barred by limitation?
8) Whether defendant No.4 proves that the alleged agreement of sale dated 06.04.1977 is hit by Sec.8 of Hindu Minority and Guardianship Act, 1956?
7. To substantiate his claim the plaintiff has deposed before the Court as P.W.1 and he has produced as many as 22 documents marked from Ex.P.1 to Ex.P.22. Per contra the defendant No.4 has been examined as D.W.1 and she has relied on 34 documents which are marked from Ex.D.1 to Ex.D.34. Defendant Nos.1 to 3 have not led their evidence.
8. Heard arguments. On hearing and on perusal of the relevant materials and evidence on record, my findings on the above issues are as follows:-
Issues framed by cch-16 on 11.08.2004 Issue No.1:- In the negative;
Issue No.2:- In the negative;
Issue No.3:- In the negative;
Issue No.4:- As per final order;
Issues framed by CCH-8 on 06.09.2014 Issue No.1:- In the negative 22 O.S.No.3568/1996 Issue No.2:- In the negative Issue No.3:- In the negative Issue No.4:- In the negative Issue No.5:- In the affirmative Issue No.6:- In the negative Issue No.7:- As per final order;
Addl. issues framed by CCH-8 on 08.06.2015 Addl. issue No.1:- In the affirmative;
Addl. issue No.2:- In the affirmative;
Addl. issue No.3:- In the affirmative;
Addl. issue No.4:- In the affirmative;
Addl. issue No.5:- In the affirmative;
Addl. issue No.6:- In the negative;
Addl. issue No.7:- In the affirmative Addl. issue No.8:- In the affirmative for the following:-
REASONS
9. Addl. issue No.1:- It is the specific case made out by the plaintiff that the suit schedule property was originally owned by K. Thimmaiah who was the grand-father of the defendant Nos.2 & 3 who bequeathed the said property under a WILL dated 14.09.1972 in favour of his grand-children defendant Nos.2 & 3 and one 23 O.S.No.3568/1996 more deceased son of defendant No.1 who is mother of these defendants. It is further stated that as defendant Nos.2 & 3 and the deceased son- Venkatesh were minors, defendant No.1 was appointed as natural minor guardian of her minor children and on behalf of the minors, she had accepted the said WILL executed by K. Thimmaiah.
10. Though defendant No.4 after her impleadment, has asserted that this schedule property was the self acquired property of late Thimmaiah which he had bequeathed under the registered WILL in favour of the minor children of defendant No.1, but the plaintiff in his pleadings has not stated that it was the self acquired property of late Thimmaiah. However the fact that this property was exclusively owned by late Thimmaiah has not been denied by the plaintiff.
11. Even the defendant Nos.1 to 3 in their written statement have accepted the fact that this schedule property was belonging to late Thimmaiah which he had bequeathed in favour of his grand-children. In para-2 of the written statement of defendant Nos.1 to 3 itself they have admitted this fact. Even otherwise the materials placed on record, particularly the revenue records at Ex.P.2 to P.6 reveal that the schedule property was 24 O.S.No.3568/1996 originally owned by late Thimmaiah and thereafter by virtue of the said WILL it was transferred in the names of his minor grand-children defendants 2 and 3 through defendant No.1 as their minor guardian.
12. The defendants have also produced the said WILL at Ex.D.2 which also clearly discloses the fact that the suit schedule property was the self acquired property of late Thimmaiah which he had bequeathed in favour of defendant Nos.2 & 3. All these aspects have remained uncontroverted by any of the parties to the proceedings. Therefore the material aspect that late Thimmaiah was the absolute owner in possession of the suit schedule property prior to execution of Ex.D.2 stands proved.
13. Now the next material aspect which remains for consideration is whether he had validly bequeathed the said property in favour of his minor grand-children. As discussed supra the plaintiff himself has categorically admitted the fact of execution of Ex.D.2 WILL by late Thimmaiah in favour of defendant Nos.2 & 3 and the other deceased son of defendant No.1. Even this fact has not been denied by defendant Nos.1 to 3 and even the subsequently impleaded defendant No.4. As the parties have categorically admitted the execution of this WILL by 25 O.S.No.3568/1996 late Thimmaiah in favour of his minor grand-children, no further proof was required to prove Ex.D.2. Therefore even this aspect regarding the valid and legal bequest of the schedule property in favour of the grand-children by late Thimmaiah stands proved. Hence this addl. Issue No.1 is answered in favour of defendant No.4 in the affirmative.
14. Issue No.1 framed on 11.08.2004 and issue No.1 framed on 06.09.2014:- Since both these issues are interconnected, they are tried together to avoid repetition of facts. It is to be noted that initially the suit of the plaintiff was one for bare injunction and subsequently he got amended the plaint and sought for additional relief of declaration of title by way of adverse possession and also regarding the sale deed of the defendant No. 4 as not binding on him. Thus, heavy burden is cast on the plaintiff to prove at the first instance as to how he has perfected his title over the suit property by way of adverse possession. It is to be noted that the entire claim of the plaintiff is based on the disputed sale agreement dtd. 06.0.1977 alleged to have been executed by defendants 2 and 3 through their minor guardian defendant No.1 in favour of his deceased father 26 O.S.No.3568/1996 agreeing to sell the suit property for a sale consideration amount of Rs. 8,250/-.
15. According to the plaintiff, his father was put in possession of the suit property by defendants 1 to 3 by virtue of the above sale agreement. He has further stated that his father had also parted with substantial amount towards advance sale consideration amount on two occasions, firstly on the date of agreement he paid Rs.1,250/- and secondly on 04.07.1977 he paid Rs.3,000/-. Thus, it is his specific case that by way of part performance of the said contract his father was put in possession of the suit property and after his death the plaintiff continued in possession of the same. However he has alleged that the defendants did not execute the sale deed in his favour as per the agreed terms.
16. As stated above, to substantiate his claim the plaintiff has produced 22 documents of which Ex.P.1 is the certified copy of the objections filed by the present defendant No.4 before the Asst. Commissioner, Bengaluru in R.A.No.37/2002. As regards Ex.P.2, it is the written argument submitted by P.W.1 in the said Appeal. He has also produced various RTC extracts of the schedule property which are marked from Ex.P.1 to P.22. 27 O.S.No.3568/1996 As against this oral and documentary evidence placed before the Court by P.W.1, the defendant No.4 has examined her husband as D.W.1 and she has relied on documents which are marked from Ex.D.1 to D.34.
17. As regards Ex.D.1, it is the power of attorney executed by D.W.1 in favour of her husband to depose in this case. Ex.D.2 is the certified copy of the WILL executed in favour of the present defendant Nos.2 & 3 by their grand-father K. Thimmaiah. Ex.D.3 is the revenue extract of the suit schedule property. Ex.D.4 is the endorsement issued by the Spl.LAO dated 14.09.1998 with regard to the cancellation of the acquisition proceeding as per the order passed by the Hon'ble High Court.
18. As regards Ex.D.5, it is the certified copy of the sale deed of D.W.1 executed by defendant Nos.1 to 3. She has also produced Ex.D.6 which is the absolute sale deed of her mother with respect to some other property sold by the present defendant Nos.1 & 2. She has also produced the mutation extract standing in her name which is marked at Ex.D.7 in pursuance of her registered sale deed. She has also relied on the RTC extracts of the schedule property which are marked from Ex.D.8 to 28 O.S.No.3568/1996 Ex.D.11. As regards Ex.D.12, it is the certified copy of the order passed by the Asst. Commissioner in RA No.37/2002 thereby dismissing the appeal preferred by the present P.W.1 against her questioning the revenue entries in her name in the revenue records of the suit property. She has also produced the certified copy of the order passed by the Spl.D.C. in RA No.47/2003 which was filed by the present P.W.1 challenging the order passed in Ex.D.12 appeal and this Ex.D.13 appeal was also dismissed. Ex.D.14 is the notification of the D.C. with regard to conversion of the suit schedule property to NA use.
19. To show the market value of the suit schedule property, D.W.1 has produced the endorsements issued by the Sub-Registrar which are marked at Ex.D.15 & D.16. She has also produced a certified copy of gift deed executed by her mother in favour of her grand-children which is marked at Ex.D.17. As regards Ex.D.18, it is the mutation entry standing in the name of donees of Ex.D.17 in pursuance of the said gift deed. As regards Ex.D.19, it is the RTC extract standing in the name of the present defendant No.1 after quashing of the acquisition proceedings pertaining to the suit property. This 29 O.S.No.3568/1996 document also reveals the fact that the name of Thimmaiah was deleted and in its place the name of the present defendant No.1 came to be entered to the suit schedule property.
20. Ex.D.20 is also one more RTC extract which once again shows the name of the present defendant No.1. As regards Ex.D.21, it is the subsequent RTC extract standing in the name of D.W.1 in pursuance of her sale deed. Again Ex.D.22 to D.24 RTC extracts reveal her name. She has also produced the certified copies of various photographs of the suit property which are marked from Ex.D.25 & D.26 to show her possession over the schedule property. She has also produced some medical records pertaining to her treatment which are marked from Ex.D.27 to D.34 to show that she was not keeping good health in order to attend the Court and depose in this case. In the backdrop of this oral and documentary evidence placed before the Court by both the parties it is to be seen whether P.W.1 could establish his title and possession over the schedule property by way of adverse possession or his lawful possession under the disputed sale agreement of 1977 as claimed by him. 30 O.S.No.3568/1996
21. The learned counsel for the plaintiff vehemently argued that the earlier revenue records clearly indicate the factum of possession of his father over the suit schedule property. In this regard he has invited my attention to Ex.P.5 which shows his name in column No.12 of the RTC in the cultivator's column. Again the same entries are found in Ex.D.7- RTC. No doubt these RTC extracts show the name of P.W.1 in the cultivator's column for the year from 1989-90 and 1997- 98, but whether mere entry of his name in the cultivator's column would automatically establish his possession over the schedule property adverse to the interest of the true owners, is the material aspect which requires consideration.
22. As stated above, the main claim put forth by P.W.1 is with regard to his title over the suit property by way of adverse possession. Under such circumstances he must necessarily plead and prove the material ingredients of adverse possession. It is pertinent to note that at the first instance he has claimed that by virtue of the disputed sale agreement of the year 1977, his father entered into possession of the schedule property in part performance of the said contract. It is material to note 31 O.S.No.3568/1996 that except referring to the said sale agreement in the pleadings and in the oral testimony of P.W.1, he has not produced the said sale agreement before the Court till this date. Under such circumstances as rightly argued by the learned counsel for defendants, a reasonable suspicion certainly arises as to the existence of any such sale transaction between plaintiff's father and defendant Nos.1 to 3. Even in his cross-examination dated 22.09.2017 P.W.1 has categorically admitted that he has not produced the original agreement of sale in the present suit. Even it is pertinent to note that as per his further admission in the same paragraph he has no document to show that defendant No.1 ever handed over possession of the suit schedule property to his father under the alleged sale agreement. This material piece of admission of P.W.1 is relevant in this regard which reads thus:-
"I have not produced the original agreement of sale in the present suit. It is false to suggest that defendant No.1 never executed any agreement of sale in favour of my father and I am depositing falsely in that regard. It is false to suggest that I have not produced any documents to show that defendant No.1 has handed over possession of suit schedule property to my father under the said 32 O.S.No.3568/1996 alleged agreement of sale. In that regard I have not produced any documents".
The above admission of P.W.1 clearly indicates that the story set up by him based on the alleged sale agreement is not free from any suspicion.
23. However as discussed supra, P.W.1 has relied on the revenue entries in the RTC extract as shown in Ex.P.5 & P.6 wherein his name has been entered into cultivator's column of the suit schedule property for the year 1989-90 to 1994-95 and thereafter for the year 1998. It is significant to note that though his name is found in these RTC extracts in column No.12, but the said entry came to be effected by virtue of the order of the Tahasildar dated 28.03.1990 in a proceeding No.RRT(1)/K/203/87-88.
24. It is an undisputed fact that subsequently the very same plaintiff preferred RA No.37/2002 as per Ex.D.12 questioning the entry of name of defendant No.4 in the revenue records pertaining to the schedule property and had sought for re-entering his name in the RTC extract in column No.12 and the said appeal came to be dismissed by the competent authority as per Ex.D.12 holding that since the name of defendant No.4 was 33 O.S.No.3568/1996 entered by virtue of her registered sale deed dated 21.11.1998, the name of P.W.1 cannot be entered in the RTC extract without there being any registered title deed in his favour. Even it has been observed in the said order that though P.W.1 had also set up the disputed sale agreement in the said proceeding he had not taken any action to get sale deed executed on the basis of the alleged sale agreement and accordingly his appeal came to be dismissed.
25. It is further relevant to note that being aggrieved by the order passed in Ex.D.12 proceeding the present P.W.1 preferred revision before the D.C. and even the said revision came to be dismissed on 28.06.2010 as per Ex.D.13 order and the name of the present defendant No.4 to the revenue record of the schedule property came to be confirmed. It is further to be noted that the said order as per Ex.D.13 has remained unchallenged by P.W.1 till this date and as such it has attained finality. Under such circumstances in view of these subsequent orders passed in favour of defendant No.4, now P.W.1 still cannot agitate on the ground that he was in possession of the schedule property as per earlier entries found in 34 O.S.No.3568/1996 Ex.P.4 & P.5 which have no relevancy in view of the order passed as per Ex.D.14.
26. It is pertinent to note that even in Ex.P.5 & P.6 we do not find any reference with regard to alleged sale agreement set up by P.W.1. All these circumstances clearly falsify his claim that his father and after his death P.W.1 continued in possession of the schedule property under part performance of the alleged sale agreement. If really that was the case and if really defendant Nos.1 to 3 had agreed to sell the schedule property under the alleged sale agreement, nothing would have prevented either P.W.1 or his deceased father to seek for specific performance of contract by filing necessary suit against defendant No.1 to 4. On the contrary till this date no such prudent efforts have been made by them which once again nullify his allegation that his father had an agreement of sale in his favour allegedly executed by defendant Nos.1 to 4.
27. However the learned counsel appearing for the plaintiff has sought to rely on a number of authorities in support of argument. The first authority cited by the learned counsel is reported in N. Basavaraj (since deceased) by his LRs v/s B. Sridhar and others in 35 O.S.No.3568/1996 2010(1) Kar.L.J.622 wherein the Hon'ble High Court of Karnataka while dealing with an issue covered U/S 53-A of the Transfer of Property Act held that "the plaintiff can maintain a suit for permanent injunction alleging interference by the defendant on the ground that he is in possession of the property by way of part performance of contract U/S 53-A of the Act".
28. With due regards to the principles laid down in this decision it cannot be said that the same would help the plaintiff in any manner for the simple reason that in the case involved in this decision there was an agreement of sale said to have been executed in favour of plaintiff therein and by virtue of the said agreement the possession of the property was delivered to him and the terms and conditions which were incorporated in the said sale agreement were very much before the Court which was duly marked as Ex.C.2. This is not the circumstance in the instant case since as held above P.W.1 has utterly failed to place before the Court the so- called original sale agreement in favour of his father as claimed by him. Moreover the alleged possession of P.W.1 or his father over the schedule property by virtue of the alleged sale agreement also could not be proved by P.W.1 36 O.S.No.3568/1996 with cogent material. Not a single revenue record is finding place in the records even to show the alleged possession of his father over the suit schedule property by virtue of the alleged sale agreement of 1977. Therefore now he cannot take shelter under the principles laid down in this decision.
29. In the second decision cited by the plaintiff's counsel reported in Shrimant Shamrao Suryavanshi and another v/s Prahlad Bhairoba Suryavanshi (dead) by LRs and others in AIR 2002 SUPREME COURT 960, once again the Hon'ble Apex Court while dealing with a case U/S 53-A of the T.P. Act held that "where the transferee under a sale agreement obtained possession over the property in part performance of contract and the said possession is protected even if the period of limitation to file suit for specific performance has expired, but such possession is protected U/S 53-A of the Act".
30. Again the above principles would not help P.W.1 in this case, because even in this case the defendant/transferee therein was holding an agreement of sale in his favour with respect to the disputed property and there was also evidence brought before the Court 37 O.S.No.3568/1996 with regard to delivery of possession of the property to him which is once again not the circumstance involved in this case. Moreover as discussed supra P.W.1 has miserably failed to prove his alleged possession or possession of his father since 1977 over the suit schedule property in part of the alleged sale agreement. Therefore again the ratio laid down in this decision cannot be made applicable to the case on hand. The same principles have been reiterated by the Hon'ble Apex Court in the subsequent decisions reported in Mahadeva and others v/s Tanabai in ILR 2004 KAR 3203 and Smt.Mahadevamma v/s B.S. Lingaraju and 4 others in ILR 1981 KAR 1410.
31. It is not the case of P.W.1 that he has already maintained a suit for specific performance of contract based on the alleged sale agreement against defendant Nos.1 to 3. Therefore viewed from any angle it cannot be said that the principles laid down in any of the above cited decisions would come to the aid of P.W.1 to claim his right over the schedule property under the doctrine of part performance of contract U/S 53-A of T.P. Act. It is further relevant to note that though P.W.1 in his cross- examination dated 22.09.2017 at page-13 has positively 38 O.S.No.3568/1996 asserted by stating that in the year 1982 his father got issued a legal notice to defendant No.1 to execute sale deed with respect to suit schedule property suit property, but the same is not produced before the Court which is also admitted by him. Under such circumstance this would once again expose the falsity of the case made out by P.W.1.
32. No effort is also made by P.W.1 to examine any independent witnesses to prove even the alleged possession of his father over the suit property since 1977 till his death or even the subsequent possession of P.W.1 over the suit schedule property till this date. Under such circumstances the solitary and interested version of P.W.1 that he has got right and interest over the suit schedule property by virtue of the alleged sale agreements cannot be sustained.
33. It is to be noted that the doctrine of part performance of contract U/S 53-A of the Act has to be merely used as a defence and it cannot be used to set up a claim over a property unless and until such transferee under part performance of contract satisfies the material ingredients regarding the readiness and willingness to perform his part of the contract since the inception of the 39 O.S.No.3568/1996 contract. This proposition of law has been well settled by the Hon'ble Supreme Court in a decision reported in Mohan Lal (deceased) through his LRs and others v/s Mirza Abdul Gaffar and another in (1996)1 SCC 639 which is cited by the learned counsel for defendant No.4. Therefore viewed from any angle now P.W.1 cannot assert his right over the suit schedule property on the basis of so-called sale agreement which is not produced before the Court either on facts or under law.
34. Now the next material aspect which requires consideration is as to the claim of P.W.1 based on adverse possession. As stated above, though initially the suit of the plaintiff is one for bare injunction, but subsequently by way of amendment he got substituted additional pleadings with regard to declaration of his title by way of adverse possession. In the amended para-8A he has once again reiterated with regard to alleged delivery of possession of suit property to his father on 06.04.1977 and the failure of defendant Nos.1 to 3 to recover possession from his father and also with regard to alleged continuous possession of the plaintiff's father and after his death the possession of P.W.1 over the suit property for more than 19 years prior to the date of filing of the 40 O.S.No.3568/1996 suit and thus, he claims to have perfected his title by way of adverse possession. How far this claim of P.W.1 could be sustained in the given facts and circumstances of the case is once again a material aspect which requires consideration.
35. As rightly argued by the learned defence counsel, in order to claim adverse possession the party must specifically plead and prove the material ingredients of adverse possession. At the first instance as I have discussed above, P.W.1 has miserably failed to prove the possession of either his deceased father or after his death his own possession over the schedule property. Ex.P.3 & P.4 RTCs admittedly reveal the name of the present defendant No.1 by deleting the name of the grand-father of defendant Nos.2 & 3 Thimmaiah. However for the first time in Ex.P.5 & P.6 we find the entry of name of the present P.W1 in the cultivator's column of the schedule property by virtue of the order of Tahasildar for the period from 1989-90 till 1994-95.
36. However the subsequent RTC extracts produced by P.W.1 himself from Ex.P.7 to P.21 disclose the name of the present defendant No.4 as the owner of the schedule property by virtue of her sale deed. When it has 41 O.S.No.3568/1996 been the definite case made out by P.W.1 that defendant No.1 as the minor guardian of defendant Nos.2 & 3 had executed the alleged sale agreement in favour of his father on 06.04.1977 and put him in possession of the schedule property and till his death his father was in possession of the suit property, then certainly the name of the father of P.W.1 ought to have been entered in the cultivator's column of the schedule property. On the contrary not a single revenue record has been produced before the Court to prove his alleged continuous possession over the suit property since 1977 till his death. On the contrary for the first time in Ex.P.5 & P.6 P.W.1 could manage to get entered his name in the cultivator's column in the year 1989-90. This aspect clearly falsifies his alleged claim of continuous possession over the suit schedule property since 1977.
37. The claim of adverse possession put forth by P.W.1 cannot be sustained for another reason that as discussed supra, the essentials of adverse possession are not satisfied by P.W.1 either in the pleadings or in the evidence. As rightly argued by the learned defence counsel, once the plaintiff seeks to put forth his claim by adverse possession over the schedule property then he is 42 O.S.No.3568/1996 estopped from claiming his alleged lawful possession over the said property. It is a well established position of law that lawful possession and adverse possession cannot go hand in hand. Either the plaintiff has to prove that he was in lawful possession of the property or that he has perfected his title by adverse possession i.e., to say his possession was adverse to the interest of the true owner.
38. As already discussed supra it has been the definite stand of P.W.1 since inception that his father was put in possession of the schedule property by virtue of the disputed sale agreement dated 06.04.1977 and by way of part performance of contract they have been in continuous possession of the schedule property. Thus according to the claim of P.W.1 at the first instance his possession by virtue of the alleged sale agreement has become lawful over the schedule property. If that is the definite case sought to be pleaded by P.W.1 then he cannot retract from the said stand and seek to plead adverse possession.
39. In this regard it would be relevant to refer the very same decision relied on by the defence counsel as discussed above in Mohanlal's case wherein the Hon'ble 43 O.S.No.3568/1996 Supreme Court in Head Note 'B' has dealt with even this aspect by holding that "plea of adverse possession cannot be sustained when alternative plea for retention of possession by operation of Section 53- A of the T.P. Act is also made since the first plea being inconsistent with the second plea. It is further held that having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transfer of or his successor in title or interest and that latter has acquiesced to his illegal possession during the entire period of 12 years, that is upto completing the period of his title by prescription".
40. Thus it has been well settled that once the plaintiff pleads his possession by way of part performance of contract U/S 53-A of the T.P. Act, he cannot thereafter be permitted to maintain a parallel plea of adverse possession which is totally inconsistent with his earlier plea. The same principle will have to be extended to the present case since even in this case as admittedly at the first instance P.W.1 has sought to 44 O.S.No.3568/1996 establish his possession over the schedule property under the alleged sale agreement. Under such circumstances he cannot be permitted to take up an inconsistent plea of adverse possession.
41. The principles laid down in Mohanlal's case were also reiterated in a subsequent decision of the Hon'ble Supreme Court relied on by the defendants' counsel which is reported in Karnataka Board of Wakf v/s Govt. of India and others in (2004)10 SCC 779 wherein the Division Bench of Hon'ble Supreme Court while dealing with an issue regarding an adverse possession and simultaneously declaration of ownership, held that "pleas of adverse possession and of title are mutually inconsistent and in order to prove adverse possession there must be animus possidendi to hold the property as owner in exclusion to the actual owner".
42. The above proposition of law has been once again reiterated by the Hon'ble Supreme Court in a subsequent decision reported in Chetty Konati Rao and others v/s Kalle Venkata Subbarao and others in 2011 SAR (Civil) 104 as under:-
45 O.S.No.3568/1996
"Adverse possession Burden of proof A person pleading adverse possession has no equity in his favour as he is trying to deviate the right of the true owner. Hence it is for him to clear, plead and establish all facts necessary to establish adverse possession. The initial plea of opponent was that they had purchased the property from original owner and came in possession of the property Both these pleas have not been substantiated and thus they have not proved the necessary ingredients to establish their title by adverse possession".
43. The above principles laid down in the decision could aptly be extended to the present case, because the appellant therein had claimed title on the basis of purchase of property whereas P.W1 herein had sought to plead that he is in possession of the schedule property under the disputed sale agreement which is not before the Court. Under such circumstances both such pleas and the plea of adverse possession being inconsistent to each other, the claim of P.W.1 cannot be sustained. In the instant case the essentials of adverse possession has not been pleaded nor proved by P.W.1, because as held above, it is his definite case that his father held the schedule property by virtue of the disputed sale agreement and the said possession was continued with P.W.1 even after the death the death of his father and 46 O.S.No.3568/1996 nowhere he has pleaded that their possession was hostile to the knowledge of defendant Nos.1 to 3. Therefore on this count also the plea of adverse possession set up by P.W.1 will have to be proved.
44. The Hon'ble Supreme Court in a decision reported in Basawanth Rao since deceased by his LRs v/s Rajkumar in ILR 2009 KARNATAKA 1099 has elaborately dealt with the issue regarding adverse possession and also has held as to what are the essentials which are required to be pleaded and proved by a party claiming adverse possession. It would be note- worthy to refer this decision. The material observations are extracted hereunder:-
"CPC Section 96 - relief of declaration that the plaintiff has perfected his title by adverse possession grant of - judgment and decree appeared against plea of adverse possession proof of - ingredients to be established held, a party claiming adverse possession must prove that his possession is "lec. Vi, nec clam, lec precario", i.e., peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to other party, (d) How long his possession has 47 O.S.No.3568/1996 continued, and (e) his possession was open and undisturbed. It is only on proof of all these ingredients the case of adverse possession is said to have been established. A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Further held, unfortunately the learned trial judge has not kept in mind the settled legal principles and proceeded on the footing that in 1972 plaintiffs grand father was put in possession and the plaintiff was assisting his grand father in cultivating the property and he is in continuous possession from 1972 till the suit in 1992 for 20 years and therefore, the plaintiff has perfected his title by adverse possession. The said finding is contrary to the material on record. The judgment and decree passed by the trial court cannot be sustained. Accordingly, it is liable to be set aside. At para-12 of the judgment it is held as under:-
possession is one of the few phenomena considered to be the most complex in the legal lavyrinex and it becomes all the more abstruse when the term is prefixed by the epiphet 'adverse' and nobody finds it simple to understand which is by nature adverse. The most outstanding feature of the complexity of the concept is that the claimant placing his foot on the plea of adverse possession claims to his own title to a property to which the title of the another is not disputed. The concept of adverse possession involves 3 elements namely, property, the subject of adverse possession: possession of that property by a person having no right to its possession (Animus possidendi) and the possession being adverse to the true owner.48 O.S.No.3568/1996
adverse possession is a question of fact and in a claim of adverse possession the title is not disputed : what is alleged is only its extinction. A plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. Where a person wants to base his title on it, he should specifically set up the plea. Unless the plea is raised it cannot be entertained. A plea must be raised and it must be showed when possession became adverse, so that the starting point of limitation against the party affected can be found. The prayer clause may not be taken as a substitute for a plea. A person acquired a title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period, there should be a starting point. Therefore, the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant. It is from that date if the plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff could acquire title by way of adverse possession".
45. Therefore viewed from any angle it cannot be said that P.W.1 could prove either his lawful possession over the schedule property by virtue of the alleged sale agreement or that he has perfected his title over the suit property by adverse possession. Hence both these issues 49 O.S.No.3568/1996 will have to be answered against the plaintiff in the negative.
46. Issue no.2 framed on 06.09.2014 And addl. issue nos. 2 to 4 framed on 08.06.2015:-
Since all these issues are interconnected they are tried together to avoid repetition of facts. The defendant No.4 has categorically contended that defendant Nos.1 to 3 have sold the schedule property to her under the disputed sale deed dated 21.11.1998 as per Ex.D.5. It is her further case that on the very same day the very same vendor has also sold another property to her mother-in-
law Smt.Jayamma as per Ex.D.6. According to her contention, she being the bonafide purchaser of suit schedule property under Ex.D.5 for valuable consideration, P.W.1 cannot lay his claim over the said property because she has purchased the same from defendant Nos.1 to 3 legally.
47. Per contra the plaintiff has alleged that this sale transaction having taken place during the lis, the defendant No.4 cannot acquire any lawful title over the schedule property in view of the fact that already the plaintiff has been in possession of the schedule property by way of part performance of contract under the alleged 50 O.S.No.3568/1996 sale agreement of 1977. In view of the findings which are rendered on the preceding issues it is now evident from the evidence on record that P.W.1 without proving the alleged sale agreement nor producing it before the Court, has made a futile attempt to prove his lawful possession over the suit schedule property. As already discussed, he has utterly failed to place before the Court any materials even to show the alleged earlier possession of his father over the suit property. Under such circumstances he cannot question the validity of Ex.D.5 sale deed executed in favour of the defendant No.4.
48. It is also to be noted that as per the defence of the defendants, an acquisition proceeding was initiated with respect to suit property along with other adjacent properties for the purpose of Vyalikaval House Building Co-Operative Society which was challenged by all the land owners upto the Hon'able Supreme Court wherein the said acquisition proceeding was quashed by the Apex court by ordering to hand over the possession of the properties back to the respective land owners and accordingly the first defendant paid compensation amount of Rs.1,46,250/- and got back the possession of 51 O.S.No.3568/1996 the suit property and thereafter it was sold to the fourth defendant on 21.11.1998.
49. Though PW1 has also not denied the fact of the above acquisition proceeding and quashing of the same by the Hon'able Supreme court and re-delivery of possession of the properties to the land owners including the suit property, but he has conveniently pleaded ignorance about the first defendant refunding the above said amount to the government and getting back possession of the suit property. He has however denied the fact that the suit property was handed over to the possession of the suit property. It is to be noted that though PW1 has denied this fact, but Ex.D4 which is an undisputed document clearly speaks about the fact of the first defendant refunding the said amount to the government.
50. It is further to be noted that even there is an express admission by PW1 in his cross examination dtd.22.09.2017 on page No.15 that on 21.11.1998 the suit property was sold by defendants 1 to 3 to the fourth defendant, though he has alleged that it is an illegal transaction. Even in his further cross examination he has admitted that his challenging the entry of name of the 52 O.S.No.3568/1996 fourth defendant in the revenue records of the suit property after purchase of the same and about the dismissal of the same. He has also admitted that his suit in O.S 15020/2002 filed against D 1 to 3 for permanent injunction was also dismissed. All these admitted aspects once again falsify the factum of possession of PW1 or his father over the suit property. On the contrary the same would fortify the possession of defendants 1 to 3 and before selling away the same to the fourth defendant and after purchase of the same by D-4, she came into possession of the suit property. Hence, it is to be concluded that she is the bonafide purchaser for value. Accordingly all these issues are answered thereby answering issue No.2 framed on 06.09.2014 against the plaintiffs in the negative and additional issue Nos.2 to 4 in favour of defendant No.4 in the affirmative.
51. Issue No.5 framed on 06.09.2014 :- D1 to 3 have also contended that the suit filed by the plaintiff for permanent injunction and declaration is not maintainable without seeking for the relief of specific performance of contract. In view of the findings rendered on the preceding issues now it is proved that D1 to 3 have validly and legally alienated the suit property to D- 53 O.S.No.3568/1996
4. On the contrary, PW1 has utterly failed to prove either his title over the property by adverse possession or his alleged lawful possession by way of part performance of contract u/s 54-A of T.P Act since the alleged sale transaction entered into between D1 to 3 and his deceased father could not be proved by him. At the very outset the said claim is falsified by his failure to produce the so-called sale agreement before the court.
52. As discussed supra, at the first instance, PW1 has based his claim on the alleged sale agreement of 1977. Under such circumstances, burden was heavy on him to prove as to how his father came into possession of the suit property by virtue of the alleged sale agreement which could not be proved before the court. Though a desperate attempt was made to prove his title over the suit property by way of adverse possession, even that claim of PW1 is held to be totally unsustainable both on facts and under law for the reasons assigned supra. Under such circumstances, the only course open to PW1 was to maintain his claim by seeking the relief of specific performance of contract if really there existed any such sale agreement between his father and D1 to 3. Therefore, as rightly contended by the defendants, the 54 O.S.No.3568/1996 suit has to fail even on this count for not seeking the appropriate relief. Hence, even this issue will have to be answered in favour of the defendants in the affirmative.
53. Issue No.6 framed on 06.09.2014 and additional issue No.6 framed on 08.06.2015 :- Since both these issues are interconnected, they are taken up together for discussion to avoid repetition of facts. The defendants 1 to 4 have also questioned the maintainability of the suit on the ground that the suit reliefs are improperly valued and the court fee paid thereon is insufficient. It is their specific contention that the claim of the plaintiff that the suit property is still agricultural land is totally false since it has already been included in the Municipal Corporation limits and therefore he ought to have paid the court fee on the market value of the suit property. The learned counsel for D-4 has also stressed on this issue during the course of his arguments.
54. In support of his arguments the defendant's counsel has also sought to place reliance on a couple of decisions reported in J.M Narayana & others v/s Corporation of the City of Bangalorem by its Commissioner Office, Bangalure and others in ILR 2005 Kar 60 and in Smt. Vijayalakshmi v/s Smt. 55 O.S.No.3568/1996 Ugama Bai & another in 2015(4)KCCR 3947. In both these decisions, it has been well settled that where the disputed property is proved to have fallen within the Corporation limits, the property will have to be valued as per guideline value prescribed by State Govt. With due regards to the proposition of law laid down in these decisions, before considering the application or otherwise of those principles to the present case, it is to be seen whether the facts on hand would warrant the application of those principles.
55. By countering the arguments of the defence counsel, the learned counsel for the plaintiff has also urged with some vehemence that the court fee paid by the plaintiff is perfectly correct since the suit property as on the date of filing of the suit in the year 1996 was an agricultural land. It is to be noted that as per the own document of DW1 at Ex.D4 which is an endorsement issued by the SLAO on 14.09.1998, it is stated that the suit property was a revenue land bearing Sy.No.22 measuring 33 guntas. It is to be noted that just two months after issuance of this endorsement, the sale deed of defendant No.4 came to be executed as per Ex.D5 on 21.11.1998 and even in this sale deed the suit property 56 O.S.No.3568/1996 has been described as an agricultural land. Therefore, as rightly argued by the learned counsel for the plaintiff, as on the date of filing of this suit in the year 1996, the suit property was not included within the Corporation limits and hence, rightly the plaintiff has paid court fee as required to be paid u/s 7 of the Court Fees and Suit Valuation Act. Therefore, the principles laid down in the above citations referred to by the defence counsel cannot be extended to the facts on hand. Consequently both these issues are answered against the defendants in the negative.
56. Addnl.Issue No.7 framed on 08.06.2015 :-
Defendant No. has also sought to non-suit the plaintiff on the ground that it is hopelessly barred by limitation. It to be noted that as stated above, PW1 has mainly relied on the so-called agreement of sale of the year 1977. Though he has asserted that during his lifetime his father had issued legal notice to defendants 1 to 3 calling upon them to execute the sale deed, but admittedly no such copy of legal notice is produced before the court. It is further to be noted that since 1977 till the date no effort has been made either by PW1 or his father to get executed the sale deed in pursuance of the alleged sale 57 O.S.No.3568/1996 agreement if really there existed any such sale transaction between his father and D1 to 3. Now, in order to save the limitation an attempt has been made by PW1 to seek for declaration of his title by way of adverse possession and also sought to protect his alleged possession over suit property under part performance of contract. However, he has miserably failed to prove any of these claims.
57. It is further to be noted that admittedly the disputed sale deed at Ex.D5 has come into existence in the year 1998 immediately after the direction issued by the Hon'able Supreme Court in the above mentioned acquisition proceeding in the year 1998 itself. Under such circumstances, nothing would have prevented PW1 to seek for specific performance of contract against D1 to 3 at least in the year 1998. On the other hand he has filed the present suit for bare injunction in the year 1996. It is further to be noted that in the year 1998 itself D1 to 3 have sold the suit property to D-4.
58. It is also material to note that PW1 himself had challenged the revenue entries made in favour of D-4 in the year 2002 itself in RA 37/2002 before the Assistant Commissioner and the same was dismissed and these 58 O.S.No.3568/1996 material aspects have been categorically admitted by him in his cross examination on page No.15. It is further to be noted that even the Revision preferred by him before the D.C challenging the said order of AC also came to be dismissed on 28.06.2010 as could be borne out from the records. He has not made any prudent efforts to challenge the said sale deed even at that point of time. However, he impleaded her in the proceeding in the year 2014 after lapse of 16 years. Therefore, as rightly contended by D-4, the relief of declaration sought for by PW1 to the effect that Ex.D5 is not binding on him, is hopelessly barred by limitation. Hence, this issue will have to be answered in favour of D-4 in the affirmative.
59. Addnl.Issue No.5 framed on 08.06.2015 :-
Defendant No.4 has also taken a contention that the suit of the plaintiff is not maintainable in the absence of any relief seeking for cancellation of her sale deed. As stated above, Ex.D5 sale deed of D-4 has come into existence in the year 1998 and the evidence on record has also now proved that in pursuance of Ex.D5 her name has been mutated to the revenue records of the suit property. It is also to be noted that thereafter she has also got the said property converted to N.A use. It is relevant to note that 59 O.S.No.3568/1996 as against the document of title of D-4, PW1 has not got any registered deed of title in his favour with respect to the schedule property. As already held above, even he has miserably failed to prove his possession over the suit property. Under such circumstances, without seeking for cancellation of Ex.D5, he cannot maintain his claim of declaratory relief merely stating that it is not binding on him. Therefore, even this issue will have to be answered in favour of D-4 in the affirmative.
60. Addnl.Issue No.8 framed on 08.06.2015 :-
Defendant No.4 has also contented that the alleged sale agreement of 1977 claimed by PW1 is hit by Sec.8 of the Hindu Minority and Guardianship Act, 1956. It is an admitted fact that as on the date of the alleged sale agreement defendant No.2 and 3 and their deceased brother Venkatesh were minors. Even PW1 has pleaded this fact in his plaint in para 3. It is his case that defendant No.1 as the minor guardian of her minor children had entered into the alleged sale agreement in favour of his father. It is also an admitted fact that the suit property was bequeathed by the grandfather of D2 and 3 Timmaiah in their favour. Thus, the suit property was the minors property as on the date of the alleged 60 O.S.No.3568/1996 sale agreement of 1977. Under such circumstances, as rightly contended by D-4, the first defendant was required to obtain permission from the court to sell away the minors' property. The plaint is totally silent as to this aspect.
61. It is a well settled law that in order to deal with the minors' property, the guardian must necessarily obtain sanction from the competent court. This position of law has been well settled by the Hon'able Supreme court in a decision reported in Kallathil Sreedharan and another in (1996)6 SCC 218 on which the learned defendant's counsel has sought to place his reliance. It is to be noted that in that case even the suit for specific performance of contract was held not maintainable. The case on hand is still worse because PW1 herein has sought to base his claim on an agreement of sale which is not placed before the court. Therefore, on this count also the claim based on the so-called sale agreement set up by PW1 requires to be discarded. Hence, even this issue is answered in favour of D- in the affirmative.
62. Issue Nos.2 and 3 framed on 11.08.2004 and issue Nos. 3 and 4 framed on 06.09.2014 :-
Since all these issues are based on identical set of facts 61 O.S.No.3568/1996 for discussion, they are taken up together for consideration. In view of the findings rendered on the preceding issues, it cannot be said that PW1 could seek the relief of declaration as claimed by him. His claim was initially based on mere possessory rights on the basis of the alleged sale agreement which could not be proved by him. Though by way of amendment he sought for declaratory reliefs, even the said claim is not proved with acceptable evidence. On the contrary, from the available evidence on record, now it is proved that defendants 1 to 3 have validly and legally sold the suit property to D-4 under Ex.D5.
63. It is also significant to note that even as on the date of filing of this suit, PW1 had no documents to prove his alleged continuous possession over the suit property. Even the entries as per Ex.P5 and P6 RTC extracts in his favour have already been cancelled by the concerned revenue authorities by entering the name of D-4 to the revenue records of the suit property and those orders have attained finality. Therefore, viewed from all these angles it cannot be said that PW1 was ever been in possession of the suit property at any point of time. Under such circumstances the question of considering his 62 O.S.No.3568/1996 allegation regarding interference to his possession by the defendants does not arise at all.
64. However, the learned counsel for the plaintiff has vehemently argued that D1 to 3 have not entered into the witness box who were supposed to answer the claim of the plaintiff and therefore, an adverse inference will have to be drawn against them as neither D-4 nor DW1 could step into the shoes of defendants 1 to 3 to depose regarding the earlier transactions. It is also submitted that they have not even cross examined PW1. This line of argument canvassed on behalf of the plaintiff cannot be sustained for the simple reason that the plaintiff himself has failed to discharge the initial burden of proving his case. Moreover, defendants 1 to 3 have adopted the cross examination done to PW1 on behalf of D-4 as could be borne out from the records. Under such circumstances, he cannot rely on the weakness or infirmities crept in the defence of the defendants, which is the well settled position of law.
65. It is an equally settled law that where the court can decide the matter on the basis of the available evidence on record and on the basis of the case made out by the plaintiff himself, then the defendants need not 63 O.S.No.3568/1996 prove their stand. My conception is supported by a decision of the Hon'able Supreme court reported in Pandurang v/s Ramchandra in AIR 1981 Supreme Court 2235 wherein this aspect has been well settled as under:
Evidence Act(1 of 1872), Section 114Party failing to appear in courtDrawing an adverse inferenceQuestion as to would arise only when there is no other evidence on record on the point in issue.
66. By applying the principles laid down in the above cited decision to the present case it could squarely be held that when PW1 himself could not prove his case with cogent evidence, he cannot expect the defendants 1 to 3 to enter into the witness box to prove their contentions. Even otherwise, we have no evidence either oral or documentary, to prove the alleged actual interference caused to his possession by the defendants. When his so-called possession over the suit property itself is disproved then there is no question of the defendants causing any such alleged obstruction. Hence, all these issues are to be answered against the plaintiff in the negative.
67. Issue No.4 framed on 11.08.2004 and issue No.7 framed on 06.09.201:- From the entire 64 O.S.No.3568/1996 evidence on record, now it is apparently proved before the court that the plaintiff without there being any legally enforceable right in his favour with respect to the suit property and without even having any possessory rights over the said property, has made a futile attempt to claim the property of the defendants by filing this suit. However, he has been successful in keeping alive such frivolous suit for more than two decades thereby dragging the defendants to fight a senseless litigation by incurring monetary expenses by way of litigation charges. Therefore, the suit certainly deserves to be dismissed by imposing exemplary costs. With these observations, the court hereby proceeds to pass the following:
ORDER The suit filed by the plaintiff against the defendants for the relief of declaration and permanent injunction is hereby dismissed with exemplary costs of Rs.10,000/- (Rupees ten thousand only).
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, carried out corrections in the Computer, printout taken and then 65 O.S.No.3568/1996 pronounced by me in the Open Court on this the 4th day of October, 2021) (SAVITRI SHIVAPUTTA KUJJI) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : V. Srinivas List of documents exhibited for plaintiff:
Ex.P1: Objections filed by R.1 in RA 37/2002 before AC Ex.P2: C/c of written argument filed in RA 37/2002 Ex.P3 to 6: C/c of RTCs Ex.P7 to 21: Original RTCs Ex.P22 : C/c of MR extract List of witnesses examined for the defendants:-
D.W.1 : C. Lakshminarayana
List of documents got exhibited for the
defendants:-
Ex.D1 : GPA
Ex.D2 : Certified copy of Will
Ex.D2(a) : Typed copy
Ex.D3 : MR extract
Ex.D3(a) : Typed copy
Ex.D4 : Endorsement by LAO
Ex.D5, 6 : Certified copy of sale deeds
Ex.D7 : Certified copy of MR extract
Ex.D8 to 11: Certified copy of 4 RTCs
Ex.D12 : Certified copy of order
Ex.D13 : Certified copy of order
66 O.S.No.3568/1996
Ex.D14 : Certified copy of conversion order
Ex.D15 : Letter dtd.09.10.2017
Ex.D16 : Gazette notification
Ex.D17 : Certified copy of gift deed
Ex.D18 : Certified copy of MR extract
Ex.D19 to 24: Certified copy of 6 RTCs
Ex.D19(a) : Typed copy
Ex.D20(a) : Typed copy
Ex.D25, 26 : Certified copy of photos
Ex.D27 to 33: 7 medical prescriptions
Ex.D34 : Medical certificate dt:19.07.2021
X Addl. City Civil & Sessions Judge,
Bangalore.