Bangalore District Court
Sri N.Shivashankar vs Smt.P.Jyothi on 12 January, 2017
IN THE COURT OF THE 42nd ADDL.CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.No.43)
PRESENT:Sri.Bailur Shankar Rama,
B.Sc., M.A., LL.B.(Spl).,
42nd Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 12th day of January 2017.
O.S.No.6940/2012
Plaintiff:- Sri N.Shivashankar,
S/o Late K.Nanjundaiah,
Aged about 53 years,
R/at No.33, 3rd Cross,
Kashi Vishwanath Layout,
Krishnarajapuram,
Bangalore-560036.
(By - Sri.H.G.Swamy, Adv.)
v.
Defendants:- 1. Smt.P.Jyothi,
W/o Sri P.Srinivas,
Aged about 38 years,
R/at No.47, 'Shuba Gruha',
Munireddy Layout,
Mahadevapura Post,
Bangalore-560048.
2. Sri K.A.Ashokan,
S/o Late Agnisarman Namboodiri,
Aged about 53 years,
R/at No.16/17, 'Sri Sailam',
Raja Rajeshwarai Layout Phase-II,
D.V.Nagar Post,
Bangalore-560016.
2 O.S.No.6940/2012
3. Sri K.Satyanarayana,
S/o Late K.Venkatanarayana,
Aged about 50 years,
R/at No.12, S.R.R. Layout,
Behind DRDO, Phase-II,
Dooravani Nagar,
Bangalore-560016.
4. Mr.Ravindran.P.V.,
Aged about 57 years,
S/o.Late Sri.P.K.Veladudhan,
5. Mrs.Komala Ravindran,
Aged about 46 years,
W/o.Mr.Ravindran.P.V.,
Both Defs.4 & 5 are
R/at No.38, 'SABARI',
MEG Layout,
B.Narayanapura,
Dooravaninagar Post,
Bangalore-16.
6. Mr.S.Sathyanarayanan,
Aged about 44 years,
S/o.Sri.Swaminathan,
R/at Sri.Sathya Sai Hostel,
Kadugodi Post,
Bangalore-67.
7. Mr.Pushkaran.C.V.,
Aged about 44 years,
S/o.Sri.Chandran,
R/at No.5, Teja Layout,
Near Gangamma Temple,
Mahadevapura Post,
Bangalore-560 048.
8. Mr.Basava Punnaiah Talluri,
Aged about 58 years,
S/o.T.Ayyanna.
3 O.S.No.6940/2012
9. Mrs.P.V.Sathyadurga Devi,
Aged about 55 years,
W/o.Sri.Basava Punnaiah Talluri,
Both Defs.8 & 9 are
R/at No.338, "Sai Sri",
Gangamma Temple Street,
Mahadevapura,
Bangalore-560 048.
10. Mr.Balasubramaniyan Ganesh,
Aged about 46 years,
S/o.Sri.Krishnaswamy
Balasubramaniyan,
Represented by his Power of
Attorney Holder Mr.S.Ramesh,
Aged about 47 years,
S/o.Sri.K.Seetharam,
Residing at No.5,
Sri.Raja Rajeshwari Layout,
Behind DRDO, Phase II,
Doravaninagar Post,
Bangalore-16.
11 Mr.Unnikrishnan Raman
Nampoorthiri,
Aged about 45 years,
S/o.Late of Sri.Raman
Nampoorthiri,
Represented by his
Power of Attorney Holder
Sri.K.A.Ashokan,
Aged about 53 years,
S/o.Late Sri.Agnisarman
Namboodiri,
R/at No.16/17, "Sri Sailam",
Raja Rajeshwari Layout,
Phase II, D.V.Nagar Post,
Bangalore-16.
12. Mrs.Ambika Shyamala,
Aged about 35,
4 O.S.No.6940/2012
W/o.Mr.Unnikrishnan.P.Vasudevan
Represented by her
Power of Attorney Holder
Mr.M.K.Purushothamam Nayar,
Aged about 72 years,
S/o.late Sri.Krishna Pillay,
R/at No.22, Lakshmi Kripa,
MEG Layout, D.V.Nagar Post,
Bangalore - 560 003.
13. Mr.Sreevalsan Pillai,
Aged about 48 years,
S/o.Sri.Vasudevan Nair,
14. Mrs.Rajee Velayudhan Nair,
Aged about 45 years,
Defs.13 & 14 are
C/o.Mr.J.Leelu Nair,
R/at No.628, 7th Cross,
HAL III Stage,
Jeevan Bhima Nagar,
Bangalore-75.
(D1 & 2- By Sri.R.Santhosh Kumar, Adv.
D3 - Exparte
D4 to D14 - Sri.Babu K.A., Adv.)
Date of institution of the suit : 26.09.2012
Nature of the suit : Declaration, Injunction and
Possession
Date of commencement of : 28.08.2014
Recording of the evidence
Date on which the Judgment : 12.01.2017
was pronounced
5 O.S.No.6940/2012
Total Duration : Years Months Days
04 03 16
(BAILUR SHANKAR RAMA)
42nd ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGMENT
This is a suit filed by the plaintiff against the defendants for the relief of declaration, injunction, possession and costs.
2. The brief facts as averred in the plaint are that:-
The plaintiff is the absolute owner in possession and enjoyment of the residentially converted land bearing Survey No.52 measuring to an extent of 1 acre 10 guntas vide Conversion Order bearing No.ALN/SR(E)/105/2003-04 dated 19.12.2003 passed by the Deputy Commissioner, Bangalore District, situated at Sadaramangala Village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore, now comes within jurisdiction of BBMP. The plaintiff has purchased the suit schedule property under a Registered 6 O.S.No.6940/2012 Sale Deed dated 14.09.2012. The plaintiff submits that originally suit schedule property was belonged to one Sri.Bhuragappa, having acquired the same by way of Regrant Order dated 23.12.1983 passed by the then Tahsildar, Bangalore South Taluk. After the death of Sri.Bhuragappa, his legal heirs succeeded to the schedule property and they were in peaceful possession and enjoyment of the same. Katha was transferred in their name. The legal heirs of Sri.Bhuragappa got converted agricultural land to non-agricultural residential purpose on 19.12.2003. After conversion of land, the name of Smt.Sakamma i.e., one of the legal heirs of Sri.Bhuragappa was mutated in the records, has been entered in RTC.
Thus, the legal heirs of Sri.Bhuragappa having derived absolute right, title and interest over the schedule property, alienated the same absolutely in favour of the plaintiff. Thereafter, the plaintiff had applied for change of katha, same is pending for consideration before the concerned authority. The defendants, who are strangers to the suit schedule property as well as to the plaintiff, are on 23.09.2012 tried to interfere with plaintiff's peaceful 7 O.S.No.6940/2012 possession and enjoyment of the schedule property with the help of some rowdy and goonda elements, that was resisted by the plaintiff. They threatened the plaintiff of dire consequences. That is the reason, initially the plaintiff filed the suit for injunction. As in the written statement filed by the defendants, they claimed that they are in possession and put up sheds in their respective sites purchased by them from the GPA Holder of legal heirs of Sri.Bhuragappa and denied the title of the plaintiff, he got the suit amended for the relief of declaration and possession and paid requisite court fee. The plaintiff submits that subsequent to the filing of the suit, taking advantage of the fact that interim order was not passed by the court, in the first week of October, 2012 the defendants trespassed into the suit schedule property and occupied individual plots. The defendants built up one square asbestos roofed sheds in each plot and constructed a hollow brick compound wall around each plot. They are relying upon different Sale Deeds allegedly executed by defendant No.3 in their favour. The Registered Sale Deeds alleged to have been executed by defendant No.3 in favour of the defendants in respect of 8 O.S.No.6940/2012 the respective plots, mention about the manner in which defendant No.3 acquired the land in Sy.No.52 of Sadaramangala Village under a Registered Sale Deed dated 04.04.2003. Upon obtaining the copy of the said Sale Deeds, the plaintiff learnt that the said Sale Deed pertains to 1 acre 30 guntas of land in Sy.No.52 and not the present suit schedule property. The said Sale Deed dated 04.04.2003 is evidently executed by the legal representatives of Sri.Kenchappa, who was regranted 2 acres of land in Sy.No.52 under Regrant Order dated 23.12.1983. Therefore, suit schedule property measuring 1 acre 10 guntas of land was purchased by the plaintiff from the legal heirs of Sri.Bhuragappa in the said survey number is distinct and separate property. The individual Sale Deeds executed by defendant No.3 in favour of remaining defendants, mention about the Conversion Order passed by the Special Deputy Commissioner dated 09.09.2003, that was pertains to 1 acre 30 guntas in Sy.No.52 and has nothing to do with the present suit schedule property. Thus, the plaintiff is bonafide purchaser for value in respect of the suit schedule property, purchased after making due 9 O.S.No.6940/2012 enquiries about the clear title in respect of the schedule property. Before purchase he took out a public notice in Hindu newspaper dated 16.06.2012, thereby informing the member of public about the intended sale of suit schedule property in favour of the plaintiff. Thus, he has acquired absolute title in respect of the suit schedule property. The defendants are influential persons in the locality. They interfered with the possession of the plaintiff. The cause of action initially arose on 29.03.2012 when the defendants have interfered with the possession of the plaintiff. In so far as, the relief of declaration and possession cause of action arose in the first week of October 2012, when the defendants have trespassed. Hence, the suit.
3. After service of suit summons, the defendants 1 and 2 appeared before court through their advocate - Sri.R.Santhosh Kumar, defendant No.3 remained exparte and defendants 4 to 14 appeared through their advocate - Sri.Babu.K.A. The defendants 1 and 2 in their written statement have contended that they purchased portion of suit schedule property through Registered Sale Deeds during 2004 and have also constructed house over the said 10 O.S.No.6940/2012 sites and have been residing therein, therefore the suit filed by the plaintiff for the relief of injunction is not maintainable. The defendant No.3 had purchased the entire suit schedule property from the original owners for valid consideration and for the purpose of getting the Conversion Order and formation of sites in the said land obtained Registered General Power of Attorney dated 21.11.2002 from the original land owners. Thus, through defendant No.3 defendant No.2 had purchased site No.51, extent 30' x 40', through a Registered Sale Deed dated 12.05.2004 and since then he has been in possession and enjoyment of the same and constructed house over the said plot. Likewise, defendant No.1 purchased site No.38, extent 40' x 60', through a Registered Sale Deed dated 04.03.2004 and put up house over the said plot and has been in possession and enjoyment of the same. The records have been transferred in their names. By paying taxes to the BBMP, they are in lawful possession as owners. Since all the plots in the entire layout was sold during 2004 itself and respective plot owners are in possession of the sites and most of them have constructed building in their respective plots and the 11 O.S.No.6940/2012 schedule property is the converted land. Therefore, no land was available for the plaintiff to purchase from the original owners. As such, suit for the relief of injunction is not maintainable. According to the averments of the plaint in para No.9 the plaintiff says that he is in possession and cultivation of the land, forgetting that long back it was converted into non-agricultural purpose. On this score itself suit filed by the plaintiff is liable to be dismissed. It is contended that the plaintiff was fully aware that plots were formed in the suit schedule property and sold during 2004 itself, even then he has ventured to purchase the suit schedule property. The defendants 1 and 2 denied the contention of the plaintiff that he is the absolute owner in possession and enjoyment of the suit schedule property. They denied the Sale Deed of the plaintiff, however admits that originally schedule property belonged to one Sri.Bhuragappa, having acquired the same by way of Regrant Order dated 23.12.1983 passed by the then Tahsildar, Bangalore South Taluk and during his lifetime he was in possession and enjoyment of the property. After his death, his legal heirs have become owners and possessors. 12 O.S.No.6940/2012 Katha was changed in their names. Katha was standing in the name of Smt.Sakamma i.e., one of the legal heirs. But the alleged Conversion Order referred by the plaintiff is denied. According to the defendants, in fact defendant No.3 who had got the land converted and had formed sites and also had sold the same to the different purchasers through Registered Sale Deeds. Subsequent to the conversion of the schedule property from agricultural to non-agricultural residential purpose, the name of said Smt.Sakamma i.e., one of the legal heirs of Sri.Bhuragappa, was mutated in MR.No.59/2003-04 are true. But they specifically denied that subsequent to filing of the suit during first week of October 2012, the defendants interfered and put up a hollow brick compound wall and erected one square asbestos roofed sheds etc., what is alleged are denied by the defendants. The defendants 1 and 2 and other site owners have already filed a suit against the earlier land owners and anybody claiming through them and have also got an interim order of injunction against them. The plaintiff is fully aware of the same. Therefore, he has not approached the court with clean hands. Just to harass the 13 O.S.No.6940/2012 defendants this false suit is filed. Since the defendants 1 and 2 are the owners and in possession of their respective plots, which was transferred in their names and they are paying taxes to the BBMP, suit filed by the plaintiff against them is liable to be dismissed with exemplary costs.
4. The defendants 4, 5 and 12 have filed separate written statement and averred the similar contentions raised by the defendants 1 and 2 and suit itself is not maintainable for the relief of injunction. It is further contended that when these defendants realized that earlier land owners who have sold the sites to these defendants and they are in lawful possession in enjoyment of their respective sites in the suit schedule property, are once again trying to sell the said land by colluding with the present plaintiff. They filed suit against the land owners or anybody claiming through them from interfering with their peaceful possession and house building constructed by them and the court was pleased to grant temporary injunction order which is in force. Therefore, the present suit filed by the plaintiff is false, speculative, vexatious and vindictive and the plaintiff is not entitled to the get any of the reliefs 14 O.S.No.6940/2012 as he has not approached the court with clean hands. It is their contention that after the purchase of their respective sites, katha was transferred in their names by BBMP and they are paying taxes to BBMP. Therefore, the allegation made by the plaintiff that during first week of October 2012, these defendants forcibly trespass and put up a compound wall and erected one square asbestos roofed sheds, are all false and so stated just to make a ground. Since the plaintiff got amended the plaint for the relief of declaration and possession, the defendants contended that the allegations made by the plaintiff in para 9(a) of the plaint is specifically denied by them. The defendant No.3 has acquired the land in Sy.No.52 of Sadaramangala Village under a Registered Sale Deed dated 04.04.2003 bearing Document No.188/2003-04. The contention of the plaintiff that after obtaining the copy of the said Registered Sale Deed he came to know that the said Sale Deed pertains to 1 acre 30 guntas of land in Sy.No.52 and not the present suit property as it was executed by the legal representatives of Sri.Kenchappa, who was granted 2 acres of land in Sy.No.52 under Regrant Order dated 23.12.1983 is false. 15 O.S.No.6940/2012 The defendants contended that defendant No.3 had approached for conversion of land from agricultural land to non-agricultural land and order dated 09.09.2003 bearing No.BDS/ALN/SR(E)78/2003-04 issued by the Special Deputy Commissioner, Bangalore. Therefore, his contention that, that was not in respect of suit schedule property and said Conversion Order has nothing to do with the plaint schedule property, what is contended by the plaintiff is denied as false by the defendants. Likewise, the facts alleged by the plaintiff in para No.9(b) that he is bonafide purchaser for value in respect of the suit schedule property and prior to purchase, he had issued public notice in Hindu newspaper dated 16.06.2012 informing the members of the public about the intended sale of suit schedule property in favour of him and he is the absolute owner of the suit property, are denied by them. The further allegations that the defendants are highly influential persons and interfering with the possession of the plaintiff and there is a threat of interference, as subsequent to the suit encroached the property and started denying the title of the plaintiff and entitled the relief of declaration and possession is 16 O.S.No.6940/2012 specifically denied by the defendants. With an intention to grab the properties belonged to the defendants, the plaintiff has filed this false suit joining hands with the owners. The court fee paid is insufficient and the plaintiffs are not at all entitled to any of the reliefs claimed in the suit and sought for dismissal of the same.
5. The defendants 6 to 11, 13 and 14 adopted the very written statement filed by the defendants 1, 2, 4, 5 and 12.
6. Basing on the above said pleadings the following issues are framed:-
ISSUES
1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?17 O.S.No.6940/2012
ADDITONAL ISSUES
1. Whether the plaintiff proves that he is the owner of the suit schedule property?
2. Whether the plaintiff proves that he is entitled to get possession of the suit property by the defendants?
7. The plaintiff got himself examined as PW-1 and got marked Ex.P1 to Ex.P32 and closed his side. The defendants 2 and 3 are examined as DWs.1 and 2 and got marked Ex.D1 to Ex.D71.
8. After the closure of evidence, heard the arguments.
9. My answers to the above issues are as follows:-
Issue No.1:- In the affirmative.
Issue No.2:- In the affirmative.
Issue No.3:- In the affirmative.
Addl.Issue No.1:- In the affirmative.
Addl.Issue No.2:- In the affirmative.
Issue No.4:- As per final order,
for the following:-
18 O.S.No.6940/2012
REASONS
10. Issue No.1 to 3 & Addl.Issue Nos.1 & 2:-
For the sake of convenience these issues are taken up together for discussion to avoid repetition of facts and evidence.
11. The positive case of the plaintiff is that, he is the owner and possessor of suit schedule property i.e., 1 acre 10 guntas of land in Sy.No.52 of Sadaramangala Village, morefully described in the schedule of the plaint, as he has purchased the same through legal heirs of Sri.Bhuragappa under Ex.P1 - Registered Sale Deed dated 14.09.2012. Prior to purchase of the property, paper publication was issued in Hindu daily newspaper dated 16.06.2012 as per Ex.P23 and in Samyuktha Karnataka daily newspaper dated 25.07.2012 as per Ex.P24, thereby informing the member of public about the intended sale of suit schedule property in favour of the plaintiff. Therefore, he has become owner and possessor of the suit schedule property. Previously it was a service inam land and 1 acre 10 gutnas of land was regranted as per Ex.P2 to the vendor of the plaintiff - 19 O.S.No.6940/2012 Sri.Bhuragappa and legal heirs of Sri.Bhuragappa by name Smt.Sakamma w/o. Sri.Bhuragappa got converted 1 acre 10 guntas of land in Sy.No.52 from agricultural land to non- agricultural residential purpose as per the order of the Special Deputy Commissioner dated 19.12.2003 bearing No.ALN/SR(E)/105/2003-04 as per Ex.P3. Therefore, it is the contention of the plaintiff that the alleged Sale Deeds of the defendants shows that they purchased sites in portion of 1 acre 30 guntas, which was regranted in the name of Sri.Kenchappa and there is reference with regard to Conversion Order bearing No.ALN/SR(E)/78/2003-04 dated 09.09.2003. That the vendor of the other defendants - Sri.K.Satyanarayana i.e., defendant No.3 herein got Conversion Order by the Deputy Commissioner. Therefore, the sites which are formed in 1 acre 30 guntas of land covered under Order Ex.P27 has nothing to do with 1 acre 10 guntas of land belongs to legal heirs of Sri.Bhuragappa in Sy.No.52 of Sadaramangala Village. Only subsequently without there being any foundation in the pleading in the evidence of the defendants have come forward with a case that through the registered GPA executed in favour of 20 O.S.No.6940/2012 Sri.K.Satyanarayana by the legal heirs of Sri.Bhuragappa, he got a Conversion Order and formed a layout and they purchased sites in suit schedule property, as such, it is an after thought.
12. The learned counsel for the plaintiff vehemently argued that in the original written statement filed by the defendants 1 and 2 absolutely there is nothing is averred with regard to the Rectification Deeds executed as if they purchased the plots which are formed in the portion of the suit schedule property from its owner - defendant No.3 i.e., Sri.K.N.Satyanarayana. Even after amendment of the plaint for the relief of declaration and possession, the plaintiff has alleged that from the first week of October 2012, subsequent to the filing of this suit, the defendants have encroached upon the property and put up a compound wall to the plots and put up one square asbestos roofed sheds and they started asserting their right over the property, contending that Sri.K.Satyanarayana got obtained the Conversion Order and formed layout. But in the written statement filed by the defendants 4 to 14, absolutely nothing is averred about the Rectification Deeds executed 21 O.S.No.6940/2012 and it has no relevance with the mother deeds executed by defendant No.3 in their favour in respect of respective plots purchased by them. Therefore, with an intention to knock off the property they have created the documents. He further stressed on the point that the legal heirs of Sri.Bhuragappa got cancelled the registered GPA - Ex.D1 executed in favour of defendant No.3 - Sri.K.Satyanarayana through a registered Cancellation of GPA - Ex.P32 and also they issued notice dated 11.07.2012 to Sri.K.Satyanarayana informing him about revocation of GPA earlier executed in his favour. Therefore, the Rectification Deeds executed by so-called GPA Holder - Sri.K.Satyanarayana in favour of rest of the defendants are subsequent to the date of cancellation of General Power of Attorney, as such their contention that they purchased portions of the suit schedule property has no relevance at all. He has argued that the admissions in the cross-examination of DWs.1 and 2 makes it clear that, the Sale Deeds executed in favour of the defendants in respect of plots produced pertains to 1 acre 30 guntas of land, which was regranted in favour of Sri.Kenchappa as having reference in the Regrant Order - 22 O.S.No.6940/2012 Ex.P2 and Conversion Order - Ex.P27. Therefore, the plaintiff has proved that the defendants have subsequently encroached the land and put up a compound wall to the respective plots unauthorisedly. Therefore, the plaintiff is the bonafide purchaser for value and was in possession as on the date of suit and argued that the plaintiff is entitled to get the decree in his favour for declaration of his title and also delivery of vacant possession from the defendants and also for injunction.
13. The learned counsel for the defendants argued that though the plaintiff contends that registered GPA - Ex.D1 was cancelled by the legal heirs of Sri.Bhuragappa. But before cancellation of the said GPA sites were earlier sold in favour of the defendants by defendant No.3 on the strength of Ex.D1. As mistake was seen with regard to recitals of the Sale Deeds, Rectification Deeds were subsequently executed. Therefore, knowing fully well that GPA Holder had sold the plots formed in the suit schedule property, the plaintiff has purchased the same through the Sale Deed dated 14.09.2012 as per Ex.P1, as such he was not at all in possession as on the date of suit and this fact is 23 O.S.No.6940/2012 proved by the evidence of DWs.1 and 2 and the documentary evidence. That is the reason, subsequently he got amended the relief for declaration and possession. As the owners of the suit schedule property have executed registered GPA in favour of defendant No.3 -
Sri.K.Satyanarayana authorizing him to sell the property also and to execute the Sale Deeds. That is the reason, he had already sold the property in favour of the defendants and they become owners and possessors of the respective plots purchased by them for consideration and acquired title and possession. Therefore, as on the date of Ex.P1, it doesn't remain the property of the vendors of the plaintiff. He doesn't derive any right, title, interest, much less possession by virtue of Ex.P1 - Registered Sale Deed. Therefore, he is not entitled to get the relief of even declaration and possession and prayed that suit be dismissed with costs.
14. In the light of the arguments canvassed by both the learned counsels for the parties, it is necessary to appreciate the evidence brought on record. In the cross- examination of DW-1, he admits that previously Sy.No.52 of 24 O.S.No.6940/2012 Sadaramangala Village was a service inam land and according to him he has verified the Regrant Order passed by the Tahsildar, Bangalore South Taluk and Sy.No.52 was regranted in favour of several persons with various measurements of the land in the said survey number. A specific admission was given in page 8 of the cross- examination that, one Sri.Kenchappa was granted 2 acres of land in Sy.No.52 and his name is shown at Sl.No.19 in the Regrant Order No.H.O.A/C.R.2/1983-84 dated 23.12.1983. In the said Ex.P2 in Sl.No.17, 1 acre 10 guntas of land was regranted in Sy.No.52 in favour of Sri.Bhuragappa. In the pleadings of the defendants, there is a categorical admission that by virtue of Ex.P2 - Regrant Order 1 acre 10 guntas of land in Sy.No.52 was regranted in favour of Sri.Bhuragappa. They also admitted that after the demise of said Sri.Bhuragappa, the legal heirs succeeded to the schedule property and they were in peaceful possession and enjoyment of the same and katha in respect of the schedule property transferred to the name of one of the legal heirs i.e., Smt.Sakamma. According to the defendants, defendant No.3 had got the land converted and had formed 25 O.S.No.6940/2012 sites and sold the same to different purchasers including the defendants. The legal heirs of Sri.Bhuragappa have executed Registered GPA - Ex.D1 dated 21.11.2002 in favour of defendant No.3 - Sri.K.Satyanarayana. As such, on the strength of the said GPA, as per the evidence of DWs.1 and 2, defendant No.3 had formed layout in the suit schedule property and sites were sold.
15. Here, Ex.P31 is the notice dated 11.07.2013 given by Smt.Sakamma and Sri.S.B.Ravindra to defendant No.3 - Sri.K.Satyanarayana, canceling the Registered GPA - Ex.D1. The defendants have not denied the said notice. No suggestion was given. Therefore, vendor of defendants i.e., defendant No.3 was communicated about the cancellation and revocation of the GPA, can very well be gathered. The defence set out is that before revocation of GPA long back during 2004 itself on the strength of GPA defendant No.3 had sold the sites in favour of the defendants and they were in possession and enjoyment of the sites. Therefore, it is the contention of the defendants that even though Ex.D1 was revoked it doesn't alter the situation, because much previous to the said date he has acted on the strength of 26 O.S.No.6940/2012 GPA and executed the Sale Deeds. Therefore, according to the defendants, they acquired title and possession in respect of respective sites purchased by them from defendant No.3 and they produced the certified copy of Sale Deeds - Ex.D2, D4, D6, D33, D34, D38, D43, D48, D52, D57, D62 and D66. Therefore, it is their contention that since the dates of the said Registered Sale Deeds they are in possession of the respective sites shown in the schedule of the Sale Deeds. It is their contention that by virtue of the said Sale Deeds, katha was transferred in their names and they produced documents along with some of the tax paid receipts. Therefore, one thing is clear from the admission given by the DWs.1 and 2 in their cross- examination that, legal heirs of Sri.Bhuragappa were owners and possessors of the property earlier and only defence that is taken by them is as they purchased the respective sites formed in the said layout, prepared in the suit schedule property through defendant No.3, who is GPA Holder to the legal heirs of Sri.Bhuragappa. Ex.P32 - Registered Cancellation of General Power of Attorney dated 17.07.2012 and Ex.P31 - notice issued informing revocation 27 O.S.No.6940/2012 of GPA, doesn't take away the rights already accrued to them and it doesn't invalidate their title deeds.
16. The evidence of PW-1 is to the effect that out of 2 acres was regranted in Sy.No.52 as per the Regrant Order - Ex.P2 in favour of Sri.Kenchappa, from his legal heirs 1 acre 30 guntas covered within the boundaries shown in the schedule of the Registered Sale Deed dated 04.04.2003 defendant No.3 - Sri.K.Satyanarayana had purchased as per Ex.P28 for consideration. He became owner and possessor of the said 1 acre 30 guntas of land in Sy.No.52 of Sadaramangala Village, can very well be gathered. Therefore, the sketch obtained from Taluka Surveyor, K.R.Puram the plaintiff produced at Ex.P29, to understand the topography and lie of the land to show that Block I showed in blue colour - 1 acre 10 guntas which is present suit schedule property belonged to Smt.Sakamma and Block III showed in the green colour - 2 acres of land to the East of the suit schedule property which was purchased by defendant No.3 under Registered Sale Deed - Ex.P28. 28 O.S.No.6940/2012
17. Therefore, we have to appreciate the evidence that, whether the defendants are justified in contending that they purchased the sites formed in the suit schedule property. In the glaring face of specific case put forth by the plaintiff that, as per the Sale Deeds executed by defendant No.3 in favour of the defendants, the recitals refers to Conversion Order - Ex.P27 dated 09.09.2003 passed by the Special Deputy Commissioner in No.BDS/ALN/SR(E)/78/2003-04 in respect of 1 acre 30 guntas in Sy.No.52. Certainly, that is not in respect of suit schedule property, can very well be gathered. Because as per Ex.P28 he has purchased 1 acre 30 guntas of land from the legal heirs of Sri.Kenchappa on 04.04.2003 and thereafter, moved an application for conversion into non- agricultural purpose and accordingly it was converted as per Ex.P27.
18. If we read the recitals of Sale Deeds produced and relied by the defendants referred hereinabove, for example - Ex.D2 - Sale Deed pertains to Sri.K.A.Ashokan i.e., defendant No.2, in page 2 it is stated that vendor is the absolute owner of the schedule property bearing site No.51, 29 O.S.No.6940/2012 katha No.426/1 in converted Sy.No.52 vide Conversion Order No.BDS/ALN/SR(E)/78/2003-04 dated 09.09.2003, which refers to Ex.P27 and the Sale Deed referred 04.04.2003 is pertaining to Ex.P28 evidencing the said extent of land in Sy.No.52 was purchased from the legal heirs of Sri.Kenchappa. In all the title deeds produced by the defendants in this suit, common source of title and other particulars averred with reference to Ex.P27 and Ex.P28. That means, the property purchased 1 acre 30 guntas in Sy.No.52 from the legal heirs of Sri.Kenchappa, he got converted it into non-agricultural purpose and formed layout and with reference to the said layout formed in and sites prepared therein was purchased by these defendants, can be gathered. In respect of other 30 guntas in Sy.No.52 is concerned, No.ALN(E.K.H.W)SR/15/2011-12 dated 16.06.2011 Smt.Anjinamma, Sri.Rangappa and others got it converted.
19. In the cross-examination of DW-1 the topography of sketch - Ex.P29 while confronted, he admits that Block III shown in green colour was the property purchased by Sri.K.Satyanarayana i.e., under Ex.P28. Further, he admits 30 O.S.No.6940/2012 that the portion shown as Block I in blue colour was the property belonged to legal heirs of Sri.Bhuragappa i.e., present suit schedule property. A categorical admission in the cross-examination of DWs.1 and 2 goes to show that, except the registered GPA - Ex.D1 there was no title document executed by the legal heirs of Sri.Bhuragappa in respect of suit schedule property i.e., 1 acre 10 guntas in Sy.No.52 in favour of Sri.K.N.Satyanarayana, they have not produced any other documents. It is their specific case that he was authorized to sell the property, get the property converted into non-agricultural purpose, to prepare layout and he has executed respective Sale Deeds in respect of plots formed in the suit schedule property. In Ex.P31 and P32 Smt.Sakamma has clearly stated that she has got converted the land and the owners are capable to manage the property in question, as such GPA was revoked and that was within the knowledge of defendant No.3, can very well be gathered. Though defendants have contended that on the strength of General Power of Attorney, defendant No.3 has moved application before the Special Deputy Commissioner and got converted suit schedule property i.e., 31 O.S.No.6940/2012 1 acre 10 guntas, doesn't have the backing of any documents, for the simple reason Ex.P3 - Conversion Order No.BDS/ALN/SR(E)/105/2003-04 dated 19.12.2003 shows that Smt.Sakamma W/o. Sri.Bhuragappa had filed such applications dated 23.09.2003 and 03.11.2003 and considering her prayer, order was passed. It indicates that on the strength of GPA it is defendant No.3 got converted the suit schedule property and prepared sites therein, cannot be appreciated at all.
20. DW-1 in the cross-examination has stated that, he has never seen Smt.Sakamma and her family members and when purchased only reference in the Registered Sale Deed was in respect of Sy.No.52 an extent of 1 acre 30 guntas. According to him, only after filing of this suit he came to know about the cancellation of GPA by Smt.Sakamma. Though he claims that he was not aware that at the time the defendants obtained Rectification Deeds the GPA given to Sri.K.Satyanarayana has already been cancelled, in the cross-examination of DW-1 at page No.11 he admits that the family members of Sri.Bhuragappa did not execute any Registered Sale Deeds pertains to any of 32 O.S.No.6940/2012 the sites formed in Sy.No.52 in favour of defendant No.3 - Sri.K.Satyanarayana. It goes to show that they were aware of the fact that 1 acre 10 guntas of Sy.No.52 is belonged to Sri.Bhuragappa, his legal heirs are owners and possessors even though they executed Ex.D1 - GPA in favour of defendant No.3 assigning certain powers on him, which work he has to do and carry out on their behalf. But they did not execute any Registered Sale Deed in favour of defendant No.3 nor as admitted by DW-1 possession was not delivered to defendant No.3. He admits that legal heirs of Sri.Bhuragappa did not hand over possession of any sites formed in Sy.52 to defendant No.3 - Sri.K.Satyanarayana. As per Ex.P3 - Conversion Order, which was obtained by Smt.Sakamma only, which indicative of the fact that legal heirs of Sri.Bhuragappa have formed sites in the suit schedule property and not defendant No.3 as contended by the defendants. Because it is the positive case of the defendants that as on the date of execution of Ex.P1 in favour of PW-1, vendors of the plaintiff are not at all in possession. The clear evidence given by DWs.1 and 2 goes to show that, when any of the sites formed in suit schedule 33 O.S.No.6940/2012 property was not handed over to GPA Holder - defendant No.3 by legal heirs of Sri.Bhuragappa, how could he deliver the possession to the present defendants, is again a question. Mere producing Registered Sale Deeds of the year 2004 doesn't itself automatically regarded as an evidence to prove their possession. In view of the admission given in cross-examination of DWs.1 and 2 it is clear that, the reference made in the respective Sale Deeds was the property purchased from legal heirs of Sri.Kenchappa under Ex.P28 and he got Conversion Order from the Special Deputy Commissioner under Ex.P27. It has nothing to do with the suit schedule property. At the best, it can be said that portion of the property is lying to the east of the suit schedule property, for which only defendant No.3 - Sri.K.N.Satyanarayana derived title and possession.
21. Therefore, as rightly argued by the learned counsel for the plaintiff that the alleged sites which were purchased by the defendants 1 and 2 and defendants 4 to 14 in the respective Sale Deeds - Ex.D2, D4, D6, D33, D34, D38, D43, D48, D52, D57, D62 and D66, doesn't fall within 34 O.S.No.6940/2012 the suit schedule property, has got grain of truth. A party cannot divest what is not vested in him. When DWs.1 and 2 admits that legal heirs of Sri.Bhuragappa have not handed over the possession of the suit schedule property or any sites formed in the suit schedule property, question of these defendants have inducted in possession of respective plots as contended by them by virtue of the Registered Sale Deeds executed by the GPA Holder - defendant No.3, doesn't arise at all. Even if they approached the BBMP and on the strength of the Registered Rectification Deeds B- Katha was issued in their names and BBMP have collected taxes, doesn't in any way evidence that they purchased the sites formed in the schedule property and were inducted in possession of the same by defendant No.3. When title deeds itself shows the reference to Ex.P28 and Ex.P27 that is not the suit schedule property can very well be appreciated. Therefore, at this stage, it is worth to appreciate that when the plaintiff intends to purchase the property from the legal heirs of Sri.Bhuragappa, he got issued paper publication in Hindu Daily Newspaper - Ex.P23 dated 16.06.2012 and in "Samyuktha Karnataka" Kannada 35 O.S.No.6940/2012 Daily Newspaper dated 25.07.2012, informing the member of public about the intended sale of suit schedule property in favour of him. That means, the plaintiff has made all enquiry about the source of title of his vendors and also with abundant caution he got issued public notice as per Ex.P23 and P24. Since nobody have come forward to object his intention to purchase, he has purchased through Ex.P1- Registered Sale Deed dated 14.09.2012 and vendors were in possession of the property, have inducted him in the suit schedule property. Even though the defendants have denied the said fact, but from the evidence brought on record we can gather from the circumstances that, as far as suit schedule property is concerned possession was not delivered to GPA Holder, as such it was vacant and available to induct the plaintiff in possession under Ex.P1 - Registered Sale Deed. That is the reason, when dispute started as the defendants started to interfere with the possession of the plaintiff he has approached the police as they asked him to approach the court as the dispute is of civil nature. That is the reason, he has filed a suit for the relief of injunction.
36 O.S.No.6940/2012
22. No doubt, it has come in the evidence that defendants 1 and 2 have filed suit against Smt.Sakamma and others including defendant No.3 at O.S.No.1287/2012 on the file of PRL II Civil Judge, Bangalore Rural, for the relief of injunction. Ex.D16 is the plaint copy. Ex.D17 is the certified copy of the amended plaint copy. Ex.D18 is the certified copy of order sheet in O.S.No.1359/2012 filed against Smt.Sakamma and others by Sri.Ravindran.P.V. and others, who are defendants in this case, for the relief of permanent injunction. Ex.D19 is the certified copy of the plaint. It goes to show they obtained an order of temporary injunction. But if we go through the pleadings, there is a reference with regard to Rectification Deeds dated 21.07.2012 and not based on the mother title deeds which was executed by Sri.K.Satyanarayana as GPA Holder of legal heirs of deceased Sri.Bhuragappa, because as on the date of execution of Rectification Deeds already under Ex.P31 notice of revocation of GPA was served followed by Registered Cancellation of GPA dated 17.07.2012 - Ex.P32. Therefore, it is clear that as on the date of execution of Rectification Deeds, Sri.K.Satyanarayana was not having 37 O.S.No.6940/2012 any authority to execute such Rectification Deeds in favour of the defendants in respect of the suit schedule property can very well be gathered. Also the Conversion Order and its reference as per Ex.P3, what is stated in the Rectification Deeds. In fact, defendant No.3 was not at all having any authority to show source of title in the manner stated therein. It can be said that this suit was filed on 26.09.2012. O.S.No.1359/2012 was filed by the defendants against the plaintiff on 03.10.2012 and O.S.No.1287/2012 was filed on 20.09.2012. Therefore, one thing is clear even though they obtained exparte temporary injunction order against the present plaintiff, doesn't mean that on the strength of temporary injunction order they can build up a case for their lawful possession, because their source of possession was through Registered Sale Deeds of 2004 executed by Sri.K.Satyanarayana i.e., defendant No.3 which was in respect of the property which he had purchased under Ex.P28 - Registered Sale Deed from the legal heirs of Sri.Kenchappa and Conversion Order obtained under Ex.P27 a different property. Therefore, it is only after dispute started and the plaintiff has come up with the specific 38 O.S.No.6940/2012 version that if at all the property that they are claiming is falling within the area that was purchased under Ex.P28. It is the defendants have become alerted and only subsequently such Rectification Deeds were executed by defendant No.3 in the capacity of GPA Holder to Smt.Sakamma and others i.e., legal heirs Sri.Bhuragappa under Ex.D1, but by then already Smt.Sakamma and others have cancelled the GPA as per Ex.P31 and P32. Therefore, even though Rectification Deeds which the defendants have relied at Ex.D3, D5, D7, D39, D44, D49, D53, D58, D63 and D67. All these Rectification Deeds are come into existence in the month of August 2012, admittedly subsequent to the date of cancellation of GPA as per Ex.P31 and P32. Therefore, one point worth to appreciate that defendant No.3 intends to insert the suit schedule property and Conversion Order obtained by Smt.Sakamma in respect of the suit schedule property under Ex.P3 as the source of title and he had exercised his right as a GPA Holder in these Rectification Deeds under the garb of correcting the mistake crept in the Sale Deeds. In fact, on the said date he was not having any authority to execute such Rectification 39 O.S.No.6940/2012 Deeds. Therefore, all those Rectification Deeds do not confer any title on the defendants, to show that the respective plots purchased by them under earlier Sale Deeds was in respect of the layout formed in the suit schedule property. Because what was earlier sold by him was in respect of the property purchased from the legal heirs of Sri.Kenchappa and also Conversion Order obtained by him as per Ex.P27 and P28 i.e., admitted by DWs.1 and 2 in their cross-examination. A person who is having absolute right and possession and authority to sell the property alone can execute Registered Sale Deed, transferring such right on the purchaser. Here, in all the previous Sale Deeds which they relied to prove their title and possession were in respect of the property covered under Ex.P28 and in the cross-examination of DWs.1 and 2, they admit that the green coloured portion shown in Ex.P29
- Sketch was lying to the east of present suit schedule property. That is the reason, as Sri.K.Satyanarayana had purchased 1 acre 30 guntas from the legal heirs of Sri.Kenchappa and derived possession became absolute owner and possessor, approached the Special Deputy 40 O.S.No.6940/2012 Commissioner got Conversion Order at Ex.P27. That is the reason in the capacity of owner and possessor, he had sold the respective sites prepared by him in favour of these defendants in the said property. He has not remotely mentioned in those Registered Sale Deeds that as a GPA Holder to Smt.Sakamma and others he had executed the Registered Sale Deeds. The legal heirs of deceased Sri.Bhuragappa were not parties to those Sale Deeds. Therefore, if at all the title deeds of the defendants produced and relied that can only be with regard to the sites formed in 1 acre 30 guntas purchased under Ex.P28, because he had no authority to execute Sale Deeds in his independent capacity as an owner and possessor in the year 2004 in respect of the suit schedule property, because he was having GPA in respect of suit schedule property from 21.11.2002. If at all, he had obtained the Conversion Order and prepared the layout as GPA Holder and was authorized to sell the property and to execute the Registered Sale Deeds in favour of the purchasers, nothing prevented him to show these particulars of title of Smt.Sakamma and others by specifically giving reference to the Conversion Order 41 O.S.No.6940/2012 pertains to suit schedule property. That means, mischief was done by defendant No.3 and he has cheated the defendants 1, 2, 4 to 14, can very well be gathered. These defendants without making any enquiry and without ascertaining the right and title of defendant No.3 have purchased the sites can be gathered from the evidence brought on record.
23. Here, under these circumstances, even if when dispute started the defendants came to know the real facts during August 2012, defendant No.3 has executed Rectification Deeds, showing that he is the GPA Holder in respect of the suit schedule property of its owner, knowing fully well that by then already GPA has been revoked, communicated to him followed by Registered Cancellation of GPA as per Ex.P31 and Ex.P32. Therefore, all these Rectification Deeds relied by the defendants are void and whatever the facts that is sought to be introduced as if defendant No.3 has sold the plots prepared in the suit schedule property is void ab-initio and cannot be looked into, because any rectification is permissible if it is in consonance with the mother deeds. If Sale Deeds are in 42 O.S.No.6940/2012 respect of the plots formed in the property purchased from legal heirs of Sri.Kenchappa and Conversion Order obtained to the said portion, it cannot be expected that rectification could be had subsequently by a person on the said date of execution was not the GPA Holder to the legal heirs of Sri.Bhuragappa. Such an attempt is made, doesn't take the case of the defendants anywhere. Therefore, their say that they are owners of the respective plots formed in suit schedule property cannot be appreciated at all, as rightly argued by the learned counsel for the defendants.
24. Under these circumstances, the facts alleged by the plaintiff that subsequent to the filing of the suit the defendants have forcibly trespassed and put up a hollow brick compound wall and one square asbestos roofed sheds and they started asserted their right over the property, which prompted him to convert the suit for declaration of ownership and possession. Even otherwise, in the evidence of DWs.1 and 2, no where they have stated that from 2004 they constructed the house and resided therein in the portion of the suit schedule property i.e., in the plots which they are claiming.
43 O.S.No.6940/2012
25. In the cross-examination of DW-2 in page 9 he admits that, all the sites were sold by Sri.K.Satyanarayana formed in 1 acre 30 guntas in Sy.No.52. Even copy of the notice - Ex.P31 confronted to him, he has identified that said Xerox copy bears the signature of Sri.K.Satyanarayana. That means, revocation of GPA notice issued by Smt.Sakamma and others dated 11.07.2012 was within the knowledge of defendant No.3. Merely stating that public notice issued before purchase of suit schedule property as per Ex.P23 and P24 in Hindu and Samyutha Karnataka Papers, the defendants cannot say that they are not subscribers to the said papers, as such the said publication was not in their knowledge. Once paper publication in the locally published paper having wide circulation, it is presumed that it was within the knowledge of the defendants. Therefore, Sri.K.Satyanarayana doesn't have any right to get Conversion Order from the authorities in respect of suit schedule property. DW-2 has stated that strategies to defend the suit have been worked out by them on behalf of all others. He has produced Ex.D25 to D32 - GPAs executed by the defendants 5, 6, 7, 8, 10, 11, 12, 13 44 O.S.No.6940/2012 and 14. On behalf of them also, he has deposed before court and more particularly the written statement filed by the defendants 4, 5 and 12 was adopted by rest of the defendants, except defendant No.3. Therefore, when dispute started they hurriedly filed suit before the Rural Civil Judge Court, it doesn't mean that their contention is genuine and they doesn't know about the source of title of defendant No.3 as on the date they purchased the sites in the year 2004. If that being so, what is stated by the defendants in their written statement and also deposed by DWs.1 and 2 in their evidence that since 2004 they put up barbed wire fence, brick compound wall and put up sheds in the respective plots cannot be appreciated at all.
26. The documents are produced by DWs.1 and 2 in their evidence. Ex.D9 - Form-B of Property Register Extract in respect of Site No.38 in Sy.No.52, is entered in the name of Smt.P.Jyothi i.e., defendant No.1. Ex.D10 is the B- Extract pertains to Site No.39 in the name of defendant No.1 was only from 2012-13. Likewise, tax paid receipt pertains to defendant No.2 - Sri.K.A.Ashokan in respect of site No.51 was from the year 2012-13 i.e., at the relevant 45 O.S.No.6940/2012 point dispute arose. Ex.D12 to D14 are Encumbrance Certificates pertains to Site Nos.51, 38 and 39 of defendant No.1 i.e., Smt.P.Jyothi and defendant No.2 Sri.K.A.Ashokan shows that only after getting Rectification Deeds dated 21.07.2012 their names were entered in the Encumbrance Certificates. Only basing on Rectification Deed, they manage to get transfer the katha in BBMP in their names. Likewise, Ex.D33 is the Registered Sale Deed dated 12.02.2004 and Ex.D34 is the Rectification Deed dated 21.07.2012 in favour of defendants 4 and 5 -
Sri.Ravindran.P.V. and Smt.Komala Ravidran in respect of site No.52. B-Register Extract - Ex.D35 obtained from BBMP. Ex.D36 is the Encumbrance Certificate, evidencing that it is not entered based on the Sale Deed, but on Rectification Deed. Ex.D37 is the tax paid receipt for the year 2015-16. Likewise, Ex.D43 is the Sale Deed dated 29.11.2003 executed by Sri.K.Satyanarayana in favour of Sri.Pushakaran.C.V. i.e., defendant No.7 in respect of site No.49 in Sy.No.52. Ex.D44 is the Rectification Deed dated 04.08.2012. Ex.D45 is the B-Register Extract. Ex.D46 is the Encumbrance Certificate shows that based on the 46 O.S.No.6940/2012 Rectification Deed name of defendant No.7 was entered in the records maintained by BBMP in respect of the Site No.49. Ex.D47 is the tax paid receipt for the year 2015-16. Similarly, Ex.D48 is the Registered Sale Deed dated 04.03.2004 executed by Sri.K.Satyanarayana in favour of Sri.Basava Punnaiah Talluri and Smt.P.V.Sathyadurga Devi i.e., defendants 8 and 9, in respect of site No.53 in Sy.No.52. Ex.D49 is the Rectification Deed dated 10.08.2012. Basing on the Rectification Deed they got entered their names in the katha maintained by BBMP as per Encumbrance Certificate - Ex.D50 and tax paid receipt for the year 2015-16 - Ex.D51. Similarly, Ex.D52 is the Sale Deed dated 20.10.2003 executed by Sri.K.Satyanarayana in favour of Sri.Balasumbramaniyan Ganesh i.e., defendant No.10 pertaining to Site No.31 in Sy.No.52. But Rectification Deed was executed on 04.08.2012 as per Ex.D53. Basing on the Rectification Deed katha was changed as per B-Extract at Ex.D54 and Ex.D55 is the Encumbrance Certificate and Ex.D56 is the tax paid receipt for the year 2015-16. Similarly, Ex.D57 is the Registered Sale Deed dated 28.01.2004 executed 47 O.S.No.6940/2012 Sri.K.Satyanarayana in favour of Sri.Unnikrishnan Raman Nampoothiri i.e., defendant No.11 in respect of Site Nos.36 and 37 in Sy.No.52 and Ex.D58 is the Rectification Deed dated 04.08.2012. Basing on the Rectification Deed, entries were made in Encumbrance Certificate - Ex.D60 and katha was entered pertains to that sites as per B-Extract - Ex.D59 and tax paid by him in respect of Site Nos.36 and 37 only from 2015-16 as per Ex.D61. Ex.D62 is the Registered Sale Deed dated 01.03.2004 executed by Sri.K.Satyanarayana in favour of Smt.Ambika Shyamala i.e., defendant No.12 in respect of Site No.40 in Sy.No.52. Ex.D63 is the certified copy of Rectification Deed dated 10.08.2012. Only based on the Rectification Deed entry is made in Encumbrance Certificate. Katha was changed by BBMP in respect of the said site based on the Rectification Deed as per B-Extract at Ex.D64. Ex.D65 is the tax paid receipt for the year 2015-
16. Ex.D66 is the Sale Deed dated 12.02.2004 executed by Sri.K.Satyanarayana in favour of Sri.Sreevalsan Pillai and Smt.Rajee Velayudhan Nair i.e., defendants 13 and 14 in respect of site No.32. Ex.D67 is the Rectification Deed dated 10.08.2012. Based on the Rectification Deed entry 48 O.S.No.6940/2012 was made and katha in respect of that site was transferred in the names of the defendants 13 and 14 as per B-Extract Ex.D68. Ex.D69 is the Encumbrance Certificate. Ex.D70 is the tax paid receipt for the year 2015-16.
27. By referring all these documents one thing is clear that as already observed the mother deeds which was executed at the relevant point of time during the year 2004 by Sri.K.Satyanarayana referred to in respect of 1 acre 30 guntas of land purchased under Registered Sale Deed - Ex.P28, which was purchased from the legal heirs of original owner - Sri.Kenchappa, whose name is found in Ex.P2 - Regrant Order in respect of 2 acres of land and defendant No.3 got converted the said land as per Conversion Order dated 09.09.2003 bearing No.ALN/SR(E)/78/2003-04 at Ex.P27. The approved sketch issued by the Commissioner, CMC, Krishnarajapur - Ex.P30 refers to the sites formed in the said portion of conversion purchased under Ex.P28 and this property lies to the east of the suit property i.e., 1 acre 10 guntas belonged to legal heirs of Sri.Bhuragappa as per the Regrant Order - Ex.P2. This fact is admitted by DWs.1 and 2 in their evidence that the legal heirs of 49 O.S.No.6940/2012 Sri.Bhuragappa have not handed over possession of the suit schedule property in favour of Sri.K.Satyanarayana, though executed registered GPA in his favour as per Ex.D1 dated 21.11.2002. The evidence goes to show that on the strength of GPA, Sri.K.Satyanarayana did not developed the property and he has not got it converted into non- agricultural land for residential purpose and he has not formed any layout in the said property. If such being the case, how could he show some site numbers and execute the Sale Deeds as if he is the owner of the said property in the Rectification Deeds. Because all the mother deeds of the defendants have a reference with regard to 1 acre 30 guntas of land purchased by Sri.K.Satyanarayana from the legal heirs of Sri.Kenchappa and also Conversion Order in respect of that property as per Ex.P28 and certainly not in respect of suit schedule property belonged to legal heirs of Sri.Bhuragappa. As such, in the respective Rectification Deeds dated 21.07.2012 executed by Sri.K.Satyanarayana by showing the names of Smt.Sakamma and 3 others, who are the legal heirs of Sri.Bhuragappa as if he has executed on their behalf rectifying the mistakes crept in the original 50 O.S.No.6940/2012 Sale Deeds by showing 1 acre 10 guntas of land in Sy.No.52 belonged to legal heirs of Sri.Bhuragappa. One acre 30 guntas of land in Sy.No.52 purchased by him under Registered Sale Deed - Ex.P28 and it showed in the Rectification Deeds falsely that he has got converted the land belonged to Smt.Sakamma and others under Conversion Order bearing No.ALN/SR(E)/105/2003-04 - Ex.P3 dated 19.12.2003, because all these Rectification Deeds are executed by Sri.K.Satyanarayana only. That means, he was claiming that he was authorized by legal heirs of Sri.Bhuragappa under Ex.D1 - Registered GPA and executed Rectification Deeds. Forgetting for a while that on the date of execution of Rectification Deeds, he was not the GPA Holder to legal heirs of Sri.Bhuragappa. The mother deeds executed by him in the year 2004 in favour of the defendants was in respect of different property by showing him as the owner and possessor of the property. Because GPA earlier executed stands revoked by the specific notice issued dated 11.07.2012 as per Ex.P31, which was admittedly served on him as it bears his signature, which was identified by DW-2 in this cross-examination. Equally 51 O.S.No.6940/2012 followed by the registered Cancellation of GPA dated 17.07.2012 as per Ex.P32. Therefore, he was not having any authority to act in respect of the suit schedule property as Power of Attorney Holder to Smt.Sakamma and others and not empower to act on Ex.D1 - GPA to execute the Registered Rectification Deeds.
28. Apart from it, if he had executed the Sale Deeds in respect of layout formed and sites prepared in the suit schedule property in the mother deeds of 2004 in favour of the defendants on the strength of registered GPA - Ex.D1, if mistakes crept in and subsequently it was came to knowledge, same could be rectified by Rectification Deeds. But what has happened in this case, the properties shown in the mother deeds of the defendants have no nexus to the suit schedule property. Defendant No.3 -
Sri.K.Satyanarayana was not authorized under Ex.D1 to form layout and get the land converted into agricultural land to non-agricultural residential purpose and to obtain Conversion Certificate, such right was not given under Ex.D1 could be gathered from the conditions stated in Ex.D1 itself. Condition No.13 in Ex.D1, wherein it is 52 O.S.No.6940/2012 specifically made that the owners and attorney holders are not developers or promoters. Therefore, even if under Clause No.1 to 4 he was authorize to receive advance amount, sign and execute Agreement to Sell and Conveyance Deeds. But his contention that, he has approached the authority i.e., Special Deputy Commissioner and got the land converted and formed the layout and sites, such authority is not given under the registered GPA -
Ex.D1. Ex.P3 - Conversion Order bearing No.ALN/SR(E)/105/2003-04 referred in the Rectification Deeds, was in reality such applications dated 23.09.2003 and 03.11.2003 were filed by Smt.Sakamma i.e., one of the legal heirs of Sri.Bhuragappa and development charge was paid by her and she got obtained the Conversion Order and not Sri.K.Satyanarayana. Therefore, it is needless to say that Sri.K.Satyanarayana had exceeded the authority given under Ex.D1 - registered GPA.
29. Therefore, the learned counsel for the plaintiff has relied on a decision reported in ILR 1993 Karnataka 2306 (DB), in the case of Mohammed @ Podiya v.
Assistant Commissioner, wherein it is held that: 53 O.S.No.6940/2012
"A power-of-attorney is an authority whereby one is authorised to act for another. Power-of-attorney is ordinarily construed strictly and general powers are interpreted in the light of the special powers, although they may include incidental powers necessary for carrying out the authority granted. Where a general power is given followed by specific powers, the generality of powers will have to be read in the light of the specific powers granted".
Therefore, if we go through the powers given to Sri.K.Satyanarayana as per Ex.D1 - GPA in respect of suit schedule property is only to enter into Agreement of Sale, receive consideration, execute the Sale Deed and to file necessary application in case of litigation etc., But what is noticed by the court that, in para 6 of the GPA though earlier it was typed that apply for and obtained conversion for non-agricultural purpose and also to take all steps necessary to secure change of land use and also apply for renewal thereof and also pay necessary charges. But that was striked off. It indicative of the fact that conversion of land for non-agricultural purpose and to obtain Conversion Certificate, formation of layout and developing such 54 O.S.No.6940/2012 authority was not given to GPA Holder and evidence goes to show that he did not obtain Conversion Order and order referred by him in Rectification Deeds was in respect of suit property Ex.P3, in fact it was obtained by Smt.Sakamma.
30. Therefore, the principles laid down in the above cited decisions can be applied to the present facts of the case that he had exceeded the authorities given by the owners of the suit schedule property under GPA and he can't act exceeding his limits. Above all, on the date of execution of Rectification Deeds in favour of the defendants, the said power of attorney executed was revoked and cancelled as per Ex.P31 and P32. Therefore, without having any right and authority Sri.K.Satyanarayana had executed Rectification Deeds and the property in respect of sites mentioned transferred in the names of the defendants as per the B-Extracts and Encumbrance Certificates was only subsequent to dispute arose and owners have taken steps against the GPA Holder, revoking the GPA. Therefore, they do not derive any right, title or interest in respect of the suit schedule property, as rightly argued by the learned counsel for the plaintiff. The fact that they claimed that they are in 55 O.S.No.6940/2012 possession of the respective sites formed in the suit schedule property since 2004 cannot be believed, for the simple reason the evidence given that only after dispute started they got Rectification Deeds and moved application to BBMP. On the strength of the Rectification Deeds got transferred the katha and paid tax only from the year 2015-
16. These are all acts done subsequent to the cause of action arose to the plaintiff.
31. The learned counsel for the defendants relied on a decision reported in (2012) 1 Supreme Court Cases 656, in the case of Suraj Lamp & Industries (P) Ltd. and others v. State of Haryana and another, wherein their lordships have held that:-
"A Power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency, whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him.
An attorney-holder may however execute a deed of conveyance in exercise of the power 56 O.S.No.6940/2012 granted under the power of attorney and convey title on behalf of the grantor.".
It is held that:
In case if the documents relating to SA/GPA/ Will transactions, same may be used to obtain Specific Performance or to defend possession under Section 53-A of the T.P.Act.
The above observations are more helpful to the case of the plaintiff for the reason that the alleged Sale Deeds i.e., mother deeds which executed by him in favour of the defendants discussed hereinabove was relating to the different property purchased by him under Ex.P28. The so-
called Rectification Deeds which come into force dated 10.08.2012, on that day he was not having authority to deal with the suit schedule property. Therefore, he can't substitute the schedule property covered under the mother deed with new insertions in respect of schedule property, that is impermissible. Therefore, by virtue of the Rectification Deeds executed by defendant No.3 -
Sri.K.Satyanarayana the defendants do not get any right in respect of the suit schedule property. Therefore, much prior to the execution of Rectification Deeds on 16.06.2012 itself 57 O.S.No.6940/2012 the plaintiff got published his intention to purchase the suit schedule property in newspapers having wide circulation as per Ex.P23 and P24. These defendants including Sri.K.Satyanarayana did not raise any objections. That is the reason, he has purchased the property under Sale Deed dated 14.09.2012 at Ex.P1. Under such circumstances, the dispute arose between GPA Holder with Smt.Sakamma and others in respect of the suit schedule property. That is the reason, some of the defendants have approached the Police Inspector, Kadugodi Police Station, Bangalore, with a complaint that with the help of bulldozer and JCB compound put up by them was removed and requested to take action. On that complaint on enquiry police gave endorsement as per Ex.D11 stating that as it is of civil nature, they are at liberty get it redressed by approaching Civil Court. It is only thereafter Mr.K.A.Ashokan and Smt.P.Jyothi have filed O.S.No.1287/2012 as evidenced by copy of plaint - Ex.D16, wherein the incident took place on 17.09.2012 was alleged and contended that sheds were already existed put up by them were demolished. That means, main contention was after getting Rectification Deeds they raised such objections 58 O.S.No.6940/2012 can be gathered. Ex.D19 is the plaint copy in O.S.No.1287/2012 filed by Smt.P.Jyothi & Sri.K.A.Ashokan against Sri.K.Satyanarayana, Smt.Sakamma and others, similar contention was raised. Ex.D20 - 7 Photographs showed that JCB is seen, but no sheds or compound is seen at the spot. Merely because such JCB was seen in some land, it cannot be said that on the alleged date Smt.Sakamma and others by using JCB removed the existed sheds. Because nothing is on record to show that since 2004 till the date of filing of this suit there exists compound wall put by them and they put the sheds in their respective plots. Therefore, under such circumstances, it can be said that the legal heirs of Sri.Bhuragappa executed Registered Sale Deed in favour of the plaintiff as per Ex.P1, it was a vacant land 1 acre 10 guntas and prior to the execution of Sale Deed they revoked the GPA executed in favour of defendant No.3. Therefore, it is needless to say that what is alleged by the plaintiff that why initially he has filed a suit for injunction only that it was a vacant land purchased by him and taking advantage that there was no exparte order in this suit, these defendants have subsequently encroached 59 O.S.No.6940/2012 and put up sheds, which compelled him to amend the plaint for the relief of declaration of his title and possession from these defendants, has got grain of truth.
32. No where in the cross-examination of DWs.1 and 2 they have stated that their names were entered in the katha maintained by BBMP and paid tax prior to the execution of Rectification Deeds and tax paid receipts produced by them discussed hereinabove for the year 2015- 16 and all those documents are not sufficient to believe their contention that they were in possession since 2004 in respect of respective plots prepared in the suit schedule property. All the circumstances discussed hereinabove throw light on the fact that the contention of the plaintiff that subsequent to filing of this suit, the defendants forcibly entered into suit schedule property and put up asbestos roofed sheds and also hollow brick compound wall and started asserting their right, denying the title of the plaintiff.
33. The documents produced by the plaintiff - Ex.P5 to P9 - RTCs showing which of the property was standing in the name of Smt.Sakamma and rest of the properties in 60 O.S.No.6940/2012 Sy.No.52 who were all owners. Again he has produced RTCs for the year 2011-12 and 2012-13, in respect of entire extent in Sy.No.52 seven acres 39 guntas, to show that 1 acre 10 guntas was purchased by him under Ex.P1 and earlier it was entered in the name of Smt.Sakamma, who is the legal heir of Sri.Bhuragappa and from her he has purchased the said extent of land and put in possession. Ex.P12 is the tax paid receipt. Ex.P13 to P18 are the tax paid receipts to BBMP in respect of suit schedule property to evidence that, after purchase he has paid tax to the BBMP. He has approached the BBMP to change the katha in his name. Ex.P20 is the special notice issued by BBMP dated 05.02.2013 asking him to pay 25% of development charge of Rs.27,83,225/- to the extent of Rs.7,38,280/-. Ex.P21 is the Certificate issued from the BBMP dated 11.02.2013 that suit property was standing in the name of the plaintiff. Likewise, Ex.P22 is the Assessment Register Extract in respect of entire suit schedule property i.e., 1 acres 10 guntas of land in Sy.No.52, there also he was asked to deposit the remaining balance of development charge. Ex.P25 are the electricity bills produced by him to show that 61 O.S.No.6940/2012 he had taken electricity installation and paid electricity bills. All the documents produced by him establish the fact that he has become owner of the suit schedule property as he has purchased through a Registered Sale Deed from the rightful owners, who are the legal heirs of Sri.Bhuragappa for a consideration. The alleged possession of the defendants, what they contended from 2004 onwards based on the Registered Sale Deeds executed by defendant No.3 in their favour, cannot be believed and held that not proved to the satisfaction of the court to establish their title. We can gather from the evidence, when owners of the suit schedule property making effort to sell the property to the intended purchaser i.e., plaintiff herein, it appears that defendant No3. who was having power of attorney has without having any authority in respect of suit schedule property, by showing reference of the title and Conversion Order pertains to the adjacent property 1 acre 30 guntas which was purchased by him from legal heirs of Sri.Kenchappa, has done mischief and they started raising dispute with the owners of the plaintiff and even approached the police and filed 2 suits for injunction before Rural Civil Judge Court, 62 O.S.No.6940/2012 even though exparte T.I. order was obtained, but it doesn't give any right of them to maintain their plea that they were in possession. For the simple reason, all their documents were subsequent to filing of this suit and it is clear that with the connivance of defendant No.3, even though he was quite aware that GPA - Ex.D1 was revoked by Smt.Sakamma and others had ventured to execute registered Rectification Deeds in respect of suit schedule property without having any authority and it doesn't convey any right, title or interest in respect of suit schedule property in favour of the defendants. Even their documents such as filing of complaint, respective plots were transferred in their names in the records maintained by the BBMP and recovery of tax from them, are all subsequent documents, which cannot be regarded as an evidence to prove their possession prior to the filing of the suit. Therefore, the defence taken by the defendants that as on the date of filing of the suit the plaintiff was not at all in possession, cannot be appreciated. On the contrary, the contention raised by the plaintiff that these defendants have manufactured Rectification Deeds in connivance with defendant No.3 and subsequently got 63 O.S.No.6940/2012 changed their names entered in BBMP katha and paid tax in order to create an evidence of their possession, can be appreciated. But, those documents cannot be considered at all.
34. Apart from it, though there is a specific contention raised by the plaintiff producing the documents. In the evidence of PW-1, he has deposed with regard to his case and also documents produced by him, and these documents were brought to the notice of DWs.1 and 2 in their cross-examination and elicited from their mouth. But learned counsel for the defendants has not taken any such pains to put questions or atleast suggestions regarding the documents relied by the plaintiff and nothing is elicited from him. Therefore, it is needless to say that the defendants have failed to prove that they are in possession of the suit schedule property and they acquired title through GPA Holder of original owners of 1 acre 10 guntas in Sy.No.52 i.e., suit schedule property, which is much previous to the Sale Deed of the plaintiff. Therefore, certainly it can be said that the plaintiff has established before the court that, he is in lawful possession and enjoyment of the suit 64 O.S.No.6940/2012 schedule property and also proved his right, title and interest over the suit schedule property and interference to his possession over the suit schedule property by the defendants as on the date of suit. By producing the cogent evidence, he has proved that subsequent to filing of the suit the defendants have encroached certain portion of the land and put up sheds and brick compound wall. Therefore, the rights if any which they contend if at all will be in the portion of 1 acre 30 guntas of land in Sy.No.52, which was purchased under Registered Sale Deed from the legal heirs of Sri.Kenchappa and certainly it has no nexus to the suit schedule property. Therefore, the plaintiff is entitled to get the vacant possession of the suit schedule property from the defendants which they encroached subsequent to the filing of the suit. Therefore, under such circumstances after delivery of such possession by the defendants, the plaintiff has proved that he is entitled to get the relief of permanent injunction against the defendants and also entitled to get declaration of his title and possession as prayed in the suit on hand. Accordingly, I answer Issue Nos.1 to 3 and Addl. Issue Nos.1 and 2 in the affirmative.
65 O.S.No.6940/2012
35. Issue No.4:-
In view of my detailed finding on Issue Nos.1 to 3 and Addl.Issue Nos.1 and 2, the plaintiff has proved that he is the owner in respect of the suit schedule property and he is entitled to the relief of vacant possession from the defendants of the respective portions in the suit schedule property subsequently encroached by them and also permanent injunction as prayed for. Accordingly, I proceed to pass the following:-
ORDER Suit filed by the plaintiff against the defendants is hereby decreed.
It is declared that the plaintiff is the absolute owner of the suit schedule property and entitled to get vacant physical possession of the different illegally occupied plots within the suit schedule property of the plaintiff from the defendants.
The defendants are given 3 months time to hand over the vacant possession to the plaintiff. 66 O.S.No.6940/2012
After delivery of possession, the defendants or their representatives or agents or any other person/s claiming through/under them, are hereby restrained from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property.
Under the circumstances, parties to bear their own costs.
Draw a decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 12th day of January 2017) (BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.N.Shivashankar
(b) Defendant's side:67 O.S.No.6940/2012
DW.1 - Mr.K.A.Ashokan DW.2 - Mr.Ravindran.P.V. II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original Registered Sale Deed dated 14.09.2012 Ex.P2 : Certified Copy of Regrant Order dated 23.12.1983 Ex.P3 : Certified Copy of Official Memorandum dated 19.12.2003 Ex.P4 : Mutation Register Extract Ex.P5 to 11 : RTCs Ex.P12 to 19 : Tax Paid Receipts Ex.P20 : Notice regarding Registration of Katha Ex.P21 : Khatha Certificate Ex.P22 : Assessment Register Extract Ex.P23 & 24 : Paper publications in 2 News papers Ex.P25 : Electricity Bills & Receipts Ex.P26 : Certified copy of Official Memorandum dated 16.06.2011 Ex.P27 : Certified copy of Official Memorandum dated 09.09.2003 Ex.P28 : Certified copy of Absolute Sale Deed dated 04.04.2003 Ex.P29 : Sketch Ex.P30 : Layout Plan Ex.P31 : Legal Notice dated 11.07.2013 Ex.P32 : Certified copy of Cancellation of Power of Attorney
(b) Defendant's side:
Ex.D1 : Certified copy of General Power of
Attorney dated 21.11.2002
68 O.S.No.6940/2012
Ex.D2 : Certified copy of Absolute Sale deed
dated 12.05.2004
Ex.D3 : Certified copy of Rectification deed
dated 21.07.2012
Ex.D4 : Certified copy of Sale deed dated
04.03.2004
Ex.D5 : Certified copy of Rectification deed
dated 21.07.2012
Ex.D6 : Certified copy of Sale deed dated
04.03.2004
Ex.D7 : Certified copy of Rectification deed
dated 21.07.2012
Ex.D8 to 10 : Form-B Property Register Extracts Ex.D11 : Endorsement dated 18.09.2012 issued by Kadugodi Police Ex.D12 to 14 : Encumbrance certificates Ex.D15 : Certified copy of Order Sheet in O.S.No.1287/2012 Ex.D16 : Certified copy of Plaint in O.S.No.1287/2012 Ex.D17 : Certified copy of Amended Plaint in O.S.No.1287/2012 Ex.D18 : Certified copy of Order Sheet in O.S.No.1359/2012 Ex.D19 : Certified copy of plaint in O.S.No.1359/2012 Ex.D20 : 7 photos Ex.D21 : 1 CD Ex.D22 to 24 : Tax Paid Receipts Ex.D25 to 32 : 8 General Power of Attorneys dated 12.07.2016 Ex.D33 : Certified copy of Sale Deed dated 12.02.2004 Ex.D34 : Certified copy of Sale Deed dated 21.07.2012 Ex.D35 : Form-B Property Register Extract Ex.D36 : Encumbrance Certificate Ex.D37 : Tax Paid Receipt Ex.D38 : Certified copy of Sale Deed dated 69 O.S.No.6940/2012 23.10.2003 Ex.D39 : Certified copy of Rectification Deed dated 04.08.2012 Ex.D40 : Form-B Property Register Extract Ex.D41 : Encumbrance Certificate Ex.D42 : Tax Paid Receipt Ex.D43 : Certified copy of Sale Deed dated 29.11.2003 Ex.D44 : Certified copy of Rectification Deed dated 04.08.2012 Ex.D45 : From-B Property Register Extract Ex.D46 : Encumbrance Certificate Ex.D47 : Tax Paid Receipt Ex.D48 : Certified copy of the Sale deed dated 04.03.2004 Ex.D49 : Certified copy of the Rectification Deed dated 10.08.2012 Ex.D50 : Encumbrance Certificate Ex.D51 : Tax Paid Receipt Ex.D52 : Certified copy of Absolute Sale Deed dated 20.10.2003 Ex.D53 : Certified copy of Rectification deed dated 04.08.2012 Ex.D54 : Form-B Property Register Extract Ex.D55 : Encumbrance Certificate Ex.D56 : Tax Paid Receipt Ex.D57 : Certified copy of Absolute Sale Deed dated 28.01.2004 Ex.D58 : Certified copy of Rectification Deed dated 04.08.2012 Ex.D59 : Form-B Property Register Extract Ex.D60 : Encumbrance Certificate Ex.D61 : Tax Paid Receipt Ex.D62 : Certified copy of Absolute Sale Deed dated 01.03.2004 70 O.S.No.6940/2012 Ex.D63 : Certified copy of Rectification Deed dated 10.08.2012 Ex.D64 : From-B Property Register Extract Ex.D65 : Tax Paid Receipt Ex.D66 : Certified copy of the Sale deed dated 12.02.2004 Ex.D67 : Certified copy of the Rectification Deed dated 10.08.2012 Ex.D68 : Form-B Property Register Ex.D69 : Encumbrance Certificate Ex.D70 : Tax Paid Receipt Ex.D71 : Encumbrance Certificate 42nd ADDL. CITY CIVIL & SESSIONS JUDGE, Bengaluru.