Bangalore District Court
The Karnataka State Judicial Employees ... vs Lakshmana Murthy H N on 23 October, 2024
KABC010148472010
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY
(CCCH.11)
DATED THIS THE 23rd DAY OF OCTOBER 2024
PRESENT: Sri. S. NATARAJ, B.A.L., LL.B.,
(Name of the Presiding Judge)
O.S.NO. 3887/2010
PLAINTIFFS 1. The Karnataka State Judicial
Employees House Building
Co-operative Society Limited,
No.7/2, 'Surya Chambers',
2nd Floor, 1st Main Road,
Seshadripuram,
Bangalore - 560 020.
Represented by its Secretary.
2. The President,
The Karnataka State Judicial
Employees House Building
Co-operative Society Limited,
No.7/2, 'Surya Chambers',
2nd Floor, 1st Main Road,
Seshadripuram,
Bangalore - 560 020.
Represented by its Secretary.
2
OS.No. 3887/2010
[By Ssmt. B.V. Vidyulatha, Advocate]
/Vs/
DEFENDANTS 1) Sri H.N. Lakshmana Murthy,
S/o Sri H.C. Nagaraj,
Aged about 58 years,
R/a No.318, Ground Floor,
2nd 'G' Cross, 3rd Block,
3rd Stage, Basaveshwara Nagar,
West of Chord Road,
Bangalore -560 079.
2) Sri Kiran Kumar,
Advocate,
S/o Smt. H.M. Sujatha
& Sri G.S. Shivakumar,
aged about 32 years,
Doddamane Farm House,
In Sy.No.34, 35, 38 & 39
Gurugadahalli Village,
Tiptur Taluk, Tumkur District.
3) Sri C. Shivalingaiah
Since deceased deleted vide
Order dt: 21-11-2015.
[For D-1 by Sri G.C., Advocate]
Date of Institution of the suit : 07-06-2010
Nature of the Suit : Declaration
and Injunction.
Date of commencement of recording
of evidence : 26-11-2019
3
OS.No. 3887/2010
Date on which the Judgment was
pronounced : 23-10-2024
Year/s Month/s Day/s
Total Duration : 14 04 16
(S. NATARAJ)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This is a suit for declaration to declare to annul the sale deed dated 26-09-2002 and 15-06- 2004 as null and void and not binding on the plaintiff and alternatively for possession of the suit property.
2. The plaintiff's case in brief are as follows :
The plaintiff is a registered society registered under the provisions of Karnataka Co-operative Societies Act, 1959 on 11-08-1983. The Government 4 OS.No. 3887/2010 of Karnataka has acquired various several survey numbers of Allasandra, Chikkabommasandra and Jakkur Plantation villages, Yelahanka Hobli, Bangalore North Taluk for the purpose of plaintiff society by issuing preliminary and final notification and published in official Gazzette dated 27-02-1989, award was passed on 27-02-1989, the possession of the lands were taken on 13-11-1992 and 02-09-1994 by the Government. Thereafter, the possession of the above said lands were handed over to plaintiff society to form residential sites to be distributed to its members.
2(a). The plaintiff society has formed residential layout in the acquired lands. The site bearing No.759/B measuring East-west 90 feet North-south 60 feet i.e., the suit schedule property was carved out of the acquired lands. As per the provisions of the Karnataka Co-operative Societies Act and also bye-
laws governing the plaintiff society, it has to be 5 OS.No. 3887/2010 allotted the sites to its members considering their eligibility after collecting cost incurred for acquisition of land and layout was formed. The 1 st defendant is not the member of the plaintiff society, he is not eligible for an allotment of a site belonging to the plaintiff society either under bye-laws of plaintiff society and also under the provisions of Karnataka Co-operative Societies Act, 1959. The defendant No.1 is having knowledge of said fact, to knock off the suit schedule property in collusion with defendant No.3 have got registered sale deed dated 26-09-2002 in respect of suit schedule property in his name. 2(b). There are irregularities in the formalities of registration of sale deed. The 1st defendant has not acquired any right, title or interest over the suit schedule property. The entire transaction is vitiated by fraud. The defendant No.1 in his sale deed has shown his membership No.530 of plaintiff society, it does not belongs to 1st defendant. The defendant 6 OS.No. 3887/2010 No.1 is not the member of the plaintiff society. The transaction of sale is vitiated by fraud and it is non-est in the eye of law. The defendant No.1 allegedly executed sale deed dated 15-06-2004 in favour of defendant No.2. The 2 nd defendant had knowledge that the 3rd defendant has no right to execute the sale deed. The defendant No.2 has no right, title over the suit schedule property on the basis of the alleged sale deed. The documents are sham not acted upon by the defendants. The defendant No.3 was the President of Society from 1999 to 2005.
2(c). The present President of the plaintiff society took over the administration of the plaintiff society on 23-04-2008. An enquiry was ordered by the Asst. Registrar of Co-operative Societies, Bangalore. During the month of March 2009 while verifying the papers regarding all the sites owned by the plaintiff society, the transaction in question came to his 7 OS.No. 3887/2010 knowledge that the 3rd defendant has created number of such similar fraud collusive documents in favour of certain persons. Thereafter, the Secretary of the plaintiff society had obtained certified copy of the sale deeds and came to know that no consideration has been paid to the plaintiff society by the 1st defendant. 2(d). During the pendency of the suit, alternative prayer of possession with additional pleadings are also pleaded. The 2nd defendant claim to be in possession of suit schedule property. The plaintiff is seeking alternative relief of possession, if the Court comes to conclusion that the plaintiff is not in possession of the suit schedule property on the date of suit and prayed to decree the suit.
3. The defendant No.1 placed exparte. The defendants No.2 and 3 appeared through their respective counsels. The defendant No.2 in his written statement has contended that the suit is 8 OS.No. 3887/2010 barred by limitation. He contended that he is the absolute owner in possession of the suit schedule property purchased under the sale deed dated 15-06-2004 from defendant No.1 for valuable consideration. The defendant No.1 acquired the suit property through allotment letter dated 24-08-2002 and obtained a registered sale deed dated 26-09- 2002 executed by the plaintiff society. The plaintiff society has issued Possession Certificate on 08-04- 2004 in favour of the defendant No.1. The defendant No.1 had acquired right, title and possession over the suit property has also obtained No objection certificate on 14-06-2004 from the plaintiff society to sell the same in favour of third persons. The defendant No.1, thereafter sold the same in favour of defendant No.2. Since from the date of purchase the defendant No.2 has been in possession and enjoyment of the suit schedule property and paying tax to the authorities and prayed for dismissal of the suit.
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OS.No. 3887/2010
4. The defendant No.3 has filed written statement denying the plaint averments. He contended that the plaintiff society has its Auditor. The Society transact all proceedings through Directors and other officers appointed and suppressed the material facts. The sale deed was executed in favour of defendant No.2. The suit is bad for non-joinder of necessary parties. The Society used to get accounts audited by the Society. Sale deeds were executed by the Society and properties were allotted and sold by plaintiff society and cannot be said it is not aware of execution of sale deed after 7 years and it is barred by limitation and prayed for dismissal of the suit.
5. On the basis of the above said pleadings, this Court has framed 9 issues and 3 additional issues are as follows :
ISSUES
1) Whether the plaintiff's prove that they are the absolute owners of the suit schedule property ?10
OS.No. 3887/2010
2) Whether the plaintiff's prove that the sale deed dated 26-09-2002 executed by 3rd defendant in favour of 1st defendant is a fraudulent fabricated & collusive as such it is a null & void document ?
3) Whether the plaintiff's prove that the sale deed dated 15-06-2004 executed by 1st defendant in favour of 2nd defendant is a fraudulent, fabricated & collusive as such it is a null & void document ?
4) Whether the plaintiff's prove that they are in lawful possession & enjoyment of the suit schedule property as on the date of suit ?
5) Whether the plaintiff's prove the alleged interference ?
6) Whether the plaintiff's are entitled for the relief's claimed ?
7) Whether the suit is barred by law of limitation ?
8) Whether the suit is barred under the Karnataka Co-operative Society Registration Act ?
9) What decree or order ?
ADDL. ISSUES FRAMED ON 22-02-2014
1) Whether the plaintiff proves that the 1 st
defendant is not a member of plaintiff society and as such 1st defendant is not eligible for allotment of site belonging to plaintiff society as stated in para 6 of the plaint ?
2) Whether the 2nd defendant further proves that the suit is not properly valued and the Court fee paid is insufficient ?
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OS.No. 3887/2010
3) Whether the 3rd defendant proves that the suit is bad for non-joinder of necessary parties ? ADDL. ISSUES FRAMED ON 23-06-2014
4) Whether the plaintiff in alternative proves that plaintiff is entitled for the possession of the plaint schedule property from the defendants in case if the Court finds that the plaintiff is not in possession of the suit schedule property as prayed for ?
6. During the pendency of the suit the defendant No.3 is died. He has been deleted from the cause title.
7. The plaintiff's side initially K. Sippegowda, President had examined as PW.1 and thereafter he died. Subsequently, PW.1 K.A. Sudhakar, Incharge Secretary is examined. Exs.P-1 to P-13 documents are marked on behalf of the plaintiff. The defendant No.2 is examined as DW.1. Exs.D-1 to D-24 documents are marked.
8. Heard arguments of counsel for the plaintiff and defendant No.2 counsel. The defendant No.2 12 OS.No. 3887/2010 counsel also filed written arguments with list of citations. Perused the records.
9. My findings on the above Issues are as follows:
Issues No.1 to 3 : In the Affirmative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : Partly Affirmative
Issues No.7 & 8 : In the Negative
Addl. Issue No.1 : In the Affirmative Addl. Issue No.2 : Partly Affirmative Addl. Issue No.3 : In the Negative Addl. Issue No.4 : In the Affirmative Issue No.9 : As per the final order, for the following:
REASONS
10. ISSUES NO.1 TO 4, 7 & ADDL. ISSUE NO.1 :-
All the issues are taken together for common consideration to avoid the repetition of facts.13
OS.No. 3887/2010 10(a). The plaintiff specific case is that the 1 st defendant is not the member of the plaintiff society.
The defendant No.3 was President of the plaintiff society from 1999-2005. He has executed the fraudulent sale deed in favour of the defendant No.1 and created the documents. The defendant No.1 thereafter allegedly executed sale deed in favour of defendant No.2. The defendant No.2 has not acquired any right, title and interest over the suit schedule property. The plaintiff is the owner of the suit schedule property. The plaintiff has not received any sale consideration amount from the defendant No.1. The plaintiff society present President came to know about the fraudulent transaction and similar other transactions when the Asst. Registrar of Co-
operative Societies had made an enquiry during verifying the records in respect of sites of the plaintiff society disclosed the fraudulent transaction and after applying for the certified copies came to know about the transactions between the defendants which is 14 OS.No. 3887/2010 vitiated by fraud, non-est in the eye of law, the plaintiff is entitled for declaration and for possession.
11. The defendant No.2 has contended that he is the absolute owner of the suit schedule property as per the registered sale deed dated 15-06-2004 executed by defendant No.1. The defendant No.1 was allotted with site by the plaintiff society, thereafter he had executed a sale deed in his favour. The Possession Certificate was issued. The No objection certificate was issued by the plaintiff society to sell. The 2 nd defendant on the basis of the sale deed is in possession and enjoyment and the suit of the plaintiff is barred by limitation and prayed for dismissal.
12. PW.1 - Incharge Secretary of plaintiff society adduced evidence in the chief examination as per the plaint averments. Whereas, defendant No.2 in his 15 OS.No. 3887/2010 oral evidence deposed as per the contentions taken in his written statement.
13. The learned counsel for the plaintiff submitted that the defendant No.1 is not the member of plaintiff society. As per the bye-laws and the provisions of Karnataka Co-operative Societies Act, the sale deed cannot be executed in favour of non-member. The defendant No.3 was the President of the plaintiff society, there was no resolution passed by the Society to execute the sale deed in favour of defendant No.1. The defendant No.3 has executed the sale deed in favour of defendant No.1 in his individual capacity. The President of Society is not authorized to allot site and execute the sale deed. No consideration was paid by the defendants to the plaintiff society. In the year 2009 March the plaintiff came to know about the fraud committed by the defendants.
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OS.No. 3887/2010 13(a). The counsel further submitted that father of defendant No.2 Shivakumar was the Director of the plaintiff society up to 2004. The defendant No.2 and his sister, who is the 2nd defendant in connected suit have allegedly purchased the property from the defendant No.1. The sale deeds are not binding on the plaintiff. The suit is not barred by limitation. The plaintiff not only sought for relief of declaration and alternatively for possession. The suit is maintainable. The evidence of DW.1 does not establish the 1st defendant's membership with the plaintiff society and he has not verified the documents relied by him before purchase of property from the defendant No.1 with plaintiff society. There is a fraud committed by the defendants No.1 to 3 along with defendant No.2's father Shivakumar, who was Director of Society and prayed to decree the suit.
14. The counsel for the defendant No.2 argued that the suit is barred by limitation. The plaintiff is a 17 OS.No. 3887/2010 party to the sale deed of defendant No.1. They are aware of the sale deed. As per the evidence of PW.1 and model bye-law, the sale deed has to be prepared by the Secretary of the plaintiff society, the President is even authority to present the sale deed before the Sub-Registrar for registration. The sale deed was executed in the official capacity as a President of the plaintiff society and it is binding on the plaintiff society.
14(a). The counsel submits that PW.1 has no personal knowledge about the transaction in question. He is Incharge Secretary. The bye-laws of the Society does not permit to perform the duties of the Secretary by the Incharge Secretary. The resolution at Ex.P-1 does not authorize the PW.1 to give evidence. The counsel further submitted that Ex.D-11 is the membership application filed by the defendant No.1 and Ex.D-11(a) is the receipt issued by the plaintiff society. Exs.D-13 and D-14 are the 18 OS.No. 3887/2010 receipts issued by the plaintiff society for having received sale consideration from defendant No.1. Ex.D-15 is allotment letter, Ex.D-16 is the sale deed of defendant No.1, Ex.D-17 is the Possession certificate issued by the plaintiff society. Ex.D-18 is NOC for sale of suit property issued by the plaintiff society. The above said documents would establishes that the plaintiff society has allotted the site in favour of defendant No.1 and issued Possession certificate in favour of defendant No.1 and executed sale deed by the defendant No.3 in favour of defendant No.1. After obtaining NOC, the 1st defendant has sold the suit schedule property to defendant No.2. 14(b). The learned counsel submitted that Ex.P-10 and P-11 receipts produced by the plaintiff are inadmissible in evidence which are marked with objections of defendant No.2. The counsel submits Ex.P-10(a) and P-11(a) are the carbon copies, which are not admissible in evidence. The counsel further 19 OS.No. 3887/2010 submitted that PW.1 has admitted in his cross- examination that after closure of book next book will commence with Sl.No.1, but Ex.P-10 and P-11 are continuing number receipts which are created by the plaintiff society and not related to suit schedule property.
14(c). The counsel further submits that as per the General Body Meeting and Audit report there is no objections raised regarding non-receipt of sale consideration from defendant No.1 by the plaintiff society. There is no issue that the defendant No.1 is not the member of the plaintiff society and wrongly allotted the site without resolution and sale deed was executed.
14(d). The counsel further submitted that the plaintiff being the Society fully aware of the transaction. The suit filed in the year 2010 is barred by limitation. There is no particulars regarding fraud 20 OS.No. 3887/2010 and misrepresentation as required under Order VI rule 4 CPC. The plaintiff being the party to the sale deed ought to have sought for relief of cancellation. The relief claimed by the plaintiff for declaration is not maintainable. The alternative relief of possession does not extend the period of limitation. Art.65 of Limitation Act is not applicable. The plaintiff documents and evidence does not establish the fraud allegedly committed by the defendants. The counsel submits the plaintiff has not produced resolution book, the membership list and other registers maintained by them, as per the bye-laws non- production of registers an adverse inference has to be drawn against the plaintiff society and prayed to answer the issue against the plaintiff society.
15. In view of submissions of both sides it is necessary to appreciate the oral and documentary evidence on record. The plaintiff mainly disputed the 1st defendant's membership of plaintiff society, 21 OS.No. 3887/2010 whereas defendant No.2 has contended the 1st defendant is the member of plaintiff society bearing membership No.530, based on which the allotment letter was issued to the defendant No.1, the sale deed was executed by the defendant No.3 President in favour of defendant No.1, the Possession certificate was issued, the No objection certificate was issued for sale, thereafter the defendant No.1 has executed the sale deed in favour of defendant No.2. The rival contention whether defendant No.1 is a member of plaintiff society bearing membership No.530 is a matter for consideration. The DW.1 - 2 nd defendant has produced Ex.D-11 - copy of Associate membership application of defendant No.1 dated 12- 07-2002. Ex.D-13 is the receipt No.6283 dated 12- 07-2002 having paid Rs.78,120/- towards advance amount for allotment of site. The serial number is shown as 530/SLF. Ex.D-14 is another receipt for Rs.82,000/- towards site advance dated 23-08-2002 bearing receipt No.6328. These are the primary 22 OS.No. 3887/2010 documents relied upon by the defendant No.2 to establish that the defendant No.1 is the member of plaintiff society.
15(a). Ex.P-2 is the Model Bye-laws of plaintiff society, Clause-4(c) states, to acquire lands and formation of layouts on the lands acquired and lease house sites to the members of the Society in accordance with the norms laid down by the Government of Karnataka. Clause-4(h) states, to secure allotment of sites or houses for the members from BDA/any approved authority.
15(b). Chapter-II - Membership : The membership of the Society shall consist of :
(a) Members
(b) Nominal Members
(c) Associate Members Clause-6 : Qualifications for Membership : Any person who is above age of 18 years and who is competent under Section 11 of the Indian Contract Act of 1872.23
OS.No. 3887/2010 Clause-7 : Application for admission as members:
(a) Every application for membership shall be in writing, in the form prescribed by the Society and shall be addressed to the Secretary/Chief Executive of the Society.
(b) Every application shall be submitted along with full paid up value of atleast one share of Rs.100 and share fee of Rs.10 (Rupees 10 only) Clause-8 : Admission of Members :
(a) The Secretary of the Society who after verifying the eligibility criteria and the correct ness of the application place it for the Committee's approval.
(b) The Committee shall after having been satisfied that the applicant is eligible for membership shall pass resolution admitting the applicant and record the name of the applicant so admitted in the resolution book.
(c) The Secretary shall within 7 days of such resolution enter the member's name in the register along with the resolution number and date.24
OS.No. 3887/2010
(d) The Society shall within three months from the date on which application for admission is delivered either admit or refuse to admit any such person as a member and shall send a written communication of such admission or refusal to the applicant before the said period. If so communication of admission as a member is received by the applicant before the expiry of the said period, his application for admission shall be deemed to have been refused by the Society on the last day of said period for purpose of Section 105(A) of K.C.S. Act 1959.
Clause-10 : Rights of Members :
All members shall be eligible to avail the benefits as per the objectives under bye-law No.4 subject to the condition that a member shall be eligible for allotment of site/flat/house only if he fulfills the following requirements :
(a) he/she does not already own a site or plot or house/flat/apartment in his/her own name or in the name of any other member of his/her family in the Corporation limits/Development Authority limits/Municipality limits in whose limit the Society is situated (Explanation: 'Family' means and includes husband, wife, sons having no independent source of 25 OS.No. 3887/2010 income, unmarried daughters and person/persons dependent on the members):
(b) he/she is an employee of judicial department and has put in a minimum continuous or intermittent service of 5 years in Karnataka.
Clause-19 : List of Members :
The Society shall prepare a list of members as on the last date of each Co-operatives. The list of members shall be published on the notice board of the Society at least 15 days prior to the date fixed for elections.
Clause-20 speaks regarding nominal members.
Clause-20A : Nominal members. Clause-44 deals with powers of Managing Committee.
16. Thus, the above said bye-laws of the plaintiff society is binding on its members. In order to become a member to the plaintiff society he must be a person aged above 18 years and competent under Sec.11 of the Contract Act, he shall be either member, nominal member of associate member. 26
OS.No. 3887/2010 After receipt of application for admission of members, the Secretary of Society after verifying the eligibility criteria and correctness of the application placed it for the Committee's approval. The Committee after having satisfied that the applicant is eligible for membership shall pass resolution admitting the applicant and record the name of the applicant so admitted in the resolution book. The Society shall within 3 months from the date of such application for admission shall deliver either admit or refuse to admit any person as a member and shall send a written communication of such admission or refusal to the applicant before the said period. If no communication of admission as a member is received by the applicant before the expiry of said period his application for admission shall be deemed to have been refused by the Society.
17. Therefore, the defendant No.1 in order to show that he has applied to the Society for membership, 27 OS.No. 3887/2010 that his membership has been admitted by the Committee by passing resolution and having paid membership fee, no documents are produced by him. Defendant No.1 is placed exparte not contested. Defendant No.2 not taken pain to examine defendant No.1 on his behalf. The plaintiff has relied upon Ex.P-5(a) - Notarized copy of the membership register extract, wherein Sl.No.530 membership number, the name of the defendant No.1 is not mentioned and it is left blank. Therefore, the contention of the defendant No.2 that the 1st defendant is a member of plaintiff society at membership No.530 is fall to the ground. Added to that the plaintiff produced Ex.P- 10(a) the Receipt book, wherein receipt No.6283 dated 07-04-2005 is in the name of S.R. Venkatesh having paid Rs.5,000/- to the Society and Ex.P-11(a) receipt No.6328 is dated 08-04-2005 in the name of M. Venkateshram for Rs.74,400/- towards site advance. The receipts produced by the defendant No.2 showing that the 1st defendant has deposited a 28 OS.No. 3887/2010 site advance at Exs.P-12 and P-13 receipts are not in the name of the defendant No.1 and contrary those receipt numbers are in the name of different persons. 17(a). It is significant to note, the 2nd defendant has produced Ex.D-11 in the application it is noticed that the word "ಸಹ" is written in hand. It is not the case of the defendant No.2 that 1st defendant is associate member of plaintiff society. On the other hand, the pleadings is simply that defendant No.1 is a member of plaintiff society. It is also significant to note that the alleged application form is dated 12-07-2002. As per the model bye-laws of Ex.P-2, plaintiff society once the application is submitted with receipt having paid membership fee, it has to be placed before the Committee and Committee has to take decision and intimation will be sent to concerned member. Within specified period the decision has to be taken and communicated to the concerned member, if not communicated, the membership deemed to have not 29 OS.No. 3887/2010 been admitted. Therefore, under the said bye-laws the 2nd defendant has not produced any such intimation issued by the Committee of the plaintiff society having admitted the membership of plaintiff society. In the absence of any such intimation from the plaintiff society for a period of 3 months from the date of application, it is deemed to have not admitted the membership of defendant No.1.
17(b). Ex.D-12 receipt produced by the defendant No.2 having paid Rs.78,120/- towards alleged site advance is dated 12-07-2002, the date on which Ex.D-11 the alleged membership application was submitted. Whereas Ex.D-15 is the alleged allotment letter dated 24-08-2002 for allotment of the suit schedule site in favour of the defendant No.1. As per the bye-laws and Sec.80 of Karnataka Co-operative Societies Act the site has to be allotted to the member of the Society based on eligibility on seniority. But, here in this case, there is no material, even according 30 OS.No. 3887/2010 to Ex.D-11 that the membership was filed on 12-07- 2002, on same day as per Ex.D-13 an amount of Rs.78,120/- allegedly paid towards site advance before admitting him as member of the Society and second alleged installment at Ex.D-14 was paid on 23-08-2002 on very next day the alleged allotment letter at Ex.D-15 was issued.
17(c). Therefore, it is apparent that before admitting the 1st defendant as member he has paid the amount, the allotment letter was issued even not considering the seniority for a span of one month. This would create suspicion, the manner in which the alleged transactions were took place. Exs.D-13 and D-14 receipts are disputed by the plaintiffs by producing carbon copy of receipt book at Exs.P-11 and P-12, wherein the receipt number in which defendant No.1 is relied for having paid advance amount is totally a different persons name. The defendant No.2 counsel objected to admit Exs.P-11 and P-12 as documents 31 OS.No. 3887/2010 on behalf of the plaintiff contending that those books are carbon copies and cannot be admissible in evidence. In fact in the evidence of PW.1 those documents are marked subject to objection to be decided at the time of pronouncement of judgment. 17(d). The defendant No.2 has relied upon admissibility of Ex.P-11 and P-12 Civil Appeal No.1889/2020 Jagmail Singh and another vs. Karamjit Singh and others. In the said case, the question that was arose regarding permission to lead secondary evidence and held that the factual foundation to establish the right to give secondary evidence has to be averred in the plaint. However, the said judgment is not applicable on hand. Ex.P- 11 and P-12 are the carbon copies prepared in the same process as original documents signed by both the parties assumes character of original documents as per Sec.62 - Explanation-2.
32
OS.No. 3887/2010 17(e). AIR 2004 SCC 4082 Smt. Dayamathi Bai v. K.M. Shaffir. The said judgment is in respect of Sec.90 of Evidence Act with regard to prosecution of 30 year old document.
17(f). In this regard, it is to be seen that signed carbon copy prepared in the same process as a original document is admissible in the evidence as the original document as per Sec.62 of the Indian Evidence Act. The explanation to Sec.62 of Evidence Act states that :
"Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original."
18. In the present case Ex.P-11(a) and P-12(a) are the carbon copies signed by the parties. Thus, since carbon copy was prepared in the same process as the original document was signed by the parties, it is to 33 OS.No. 3887/2010 be treated as preliminary evidence. In this regard, Hon'ble Supreme Court in the decision in Civil Appeal No.6706/2013 Mohinder Singh v. Jaswant Kaur dated 11-09-2019, wherein the Hon'ble Apex Court held that, as per Sec.62 of Evidence Act carbon copy was prepared in the same process as the original document and once it is signed by both the parties, it assumes the character of the original document. Thus, Exs.P-11 and P-12 - Receipt book produced by the plaintiff is admissible in evidence as a primary evidence. Exs.P-11(a) and (b) are taken into consideration, the receipts relied by the defendant No.2 at Exs.D-12 and D-13 allegedly issued by the plaintiff society towards site advance bearing receipt No.6283 and 6328 is not the original receipts which are appears to have been manipulated and created.
19. That apart, DW.1 in his cross-examination has not admitted that his father was a Director of the 34 OS.No. 3887/2010 Society from 10-06-1999 to 2005. But, he admits his father was a Director of the plaintiff society and he pleads ignorance that his father was Vice-President of the plaintiff society. DW.1 admits that his sister - 2nd defendant G.S. Swetha has purchased site No.759/AB, which is adjacent to the suit site. The said site was purchased by the sister of the defendant No.2 from Paramashivaiah on 26-02-2004, the date on which the 2nd defendant has purchased the suit schedule property from the plaintiff. DW.1 admits, he has not verified with the plaintiff society whether the membership was given to defendant No.1 or not and he has not verified the documents with plaintiff society.
19(a). Further, he admits that he has not verified with the plaintiff society whether membership No.530 belongs to defendant No.1 or not. Similarly, he has not verified that membership No.529 is belongs to Paramashivaiah or not with the plaintiff society. 35
OS.No. 3887/2010 DW.1 pleads ignorance regarding signature of his father confronted to him in Ex.P-12 Resolution book. He denied that on 5-2-2004 and 10-05-2004 his father has signed as a Director of the plaintiff society in the Resolution book. He pleads ignorance about Ex.P-11 and P-12. Ex.P-12 is the Resolution book does not show that any resolution was passed for allotment of a site to defendant No.1 or he was admitted as a member of plaintiff society either as associate member, regular member or nominal member. The Resolution book at Ex.P-12 does not show any resolution having allotment of the suit schedule site in favour of the defendant No.1 and also authorizing defendant No.3 to execute a sale deed in favour of defendant No.1 at Ex.P-3 on behalf of the plaintiff society. The defendant No.3 in his written statement has contended that he has executed the sale deed as President of plaintiff society by following procedure. Unfortunately he has died and written statement remains as contention. 36
OS.No. 3887/2010 19(b). The defendant has relied upon Ex.D-17 the Possession Certificate. Ex.D-18 is the NOC allegedly issued by the plaintiff society in favour of defendant No.1. Those documents were also signed by defendant No.3. Having issued these documents there is no reference at Ex.D-12 - Resolution book.
20. PW.1 has been cross-examined by the defendants. It is mainly objected his capacity to give evidence on the ground that the bye-laws at Ex.P-2 does not provide appointment of Incharge Secretary and to adduce evidence. At the same time the model bye-laws at Ex.P-2 does not prohibit the Society from making incharge arrangement i.e., Incharge Secretary in absence of not appointing regular Secretary to the plaintiff society. Therefore, in the absence of any such prohibition in bye-laws it is inherent in the plaintiff society committee to appoint Incharge Secretary to look after and manage day to day affairs of the plaintiff society. Therefore, it 37 OS.No. 3887/2010 cannot be said that the PW.1 being the Incharge Secretary has no competency to give evidence on behalf of the plaintiff. Ex.P-1 is the resolution passed by the plaintiff society authorizing the Secretary to take steps. No doubt, the word 'Incharge Secretary' is not mentioned therein. Once the authorization is given to Secretary in his absence it is deemed that whoever is incharge of regular Secretary has authority to do acts on behalf of the plaintiff society. Therefore, in that view of the matter PW.1 has competent to depose.
20(a). In the cross-examination of PW.1 it elicited that he has taken Incharge Secretary in the year 2006, earlier transactions he was not personally aware of it. He admits that there are three types of members in the Society as per the bye-laws. The list is not produced. When the defendant No.1 has not been admitted as a member as per Ex.P-5(a), the question of non-production of membership list does 38 OS.No. 3887/2010 not anyway help to defendants. PW.1 admits in the year 2009 Sippegowda was the Secretary. One B. Ramakrishna has worked as incharge Secretary up to 2007. One Suresh Kumar was the plaintiff society since from the beginning.
20(b). PW.1 has been cross-examined with regard to audit reports and also General Body Meeting and produced Ex.D-1 to D-10. Ex.D-1 bye-law which was amended on 22-09-2013. Ex.D-3 to D-10 Annual General Body Meeting and Audit reports from 2006- 07 on wards up to 2018-19. PW.1 in his cross- examination has stated that after closure of book new book will be printed and fresh numbers will be given from starting from No.1 in respect of Ex.P-10 and P-11 receipts. Based on the said evidence it is contended that Ex.P-10 and P-11 are created and both are not commencing from Sl.No.1, after closure of book. There is no basis to accept the evidence of PW.1 that after closure of book new book will be 39 OS.No. 3887/2010 printed and fresh serial number will be given from staring from one number. Contrary, Ex.P-10 and P-11 receipt book would show which are continuing receipt books after closure of one book. Ex.D-13 receipt produced by the defendant No.2 dated 12-07- 2002, the receipt number is 6283. Ex.D-14 is dated 23-08-2002 the receipt number is 6328.
21. DW.1 has stated that he has not enquired with his father regarding Ex.D-15 allotment letter, Ex.D-16 is sale deed, Ex.D-17 is Possession certificate, Ex.D-18 No objection certificate that about his father's membership whether the resolution has been passed or not in the plaintiff society. Ex.D-12 is the Resolution book would show that father of the defendant No.2 Shivakumar was the Director of the plaintiff society from 2005-06 to 2009-10. Thus, from the evidence on record would establishes that the 1st defendant was not at all a member of plaintiff society nor his membership has 40 OS.No. 3887/2010 been admitted by the committee or intimation was given to him. Therefore, the alleged advance site receipts and application for membership, possession certificate, NOC are all appears to be fabricated. The sale deed executed by the defendant No.3 though in the name of the plaintiff, but it does not supported by any material that it was actually plaintiff society has authorized defendant No.3 with any resolution either for allotment of site to defendant No.1, authorizing him to execute the sale deed or to issue possession certificate and NOC.
21(a). Under the circumstances, the sale deed of defendant No.3 held to be induvidually defendant No.3 has executed the sale deed by using name of the plaintiff society as President, taking advantage of his position in the Society. From the evidence on record would emerge following circumstances to annul the sale deed of defendants No.1 and 2 and to answer in favour of plaintiff. The defendant No.1 membership 41 OS.No. 3887/2010 of 530 has not been allotted by the plaintiff Society or approved by the Committee. The amount allegedly paid by the defendant No.1 towards advance site at Ex.P-12, P-13 and P-14 are fabricated, it is contrary to Ex.P-11(a) and 11(b).
21(b). On the date of execution of Ex.D-16 sale deed dated 26-09-2002 by the defendant No.3 in favour of defendant No.1 and Possession certificate at Ex.D-17 dated 08-04-2004, No objection certificate at Ex.D-18 dated 14-06-2004 the sale deed executed by the defendant No.1 in favour of defendant No.2 at Ex.D- 19 on 15-06-2004 are came into existence along with defendant No.2 sister Shwetha, sale deed executed by Paramashivaiah at Ex.P-7 in respect of site No.759/AA when defendant No.2 and his sister's father Shivakumar was the Director of the plaintiff society. Those documents in all probabilities have been manipulated. Once the defendant No.1 is not the member of the plaintiff society the sale deed 42 OS.No. 3887/2010 executed by the defendant No.3 in favour of defendant No.1 is illegal. The Hon'ble High Court in the decision reported in Naryana Reddy and another vs. State of Karnataka ILR 1991 KAR 2248 (DB), wherein it is held that:
"After considering various illegalities committed by several societies concluded that where in the guise of allotment, sites are sold to its bogus members or in favour of intending purchasers by enrolling them as associate members for the purpose of making money by just in-charge of societies is illegal."
22. The 1st defendant in the present case even not established that he is associate member of plaintiff society. When there is no name of 1st defendant in the plaintiff society as a member i.e., 530, the question of producing Resolution book and other registers pertain to suit property does not arise. The defendant No.2 has not called any of the registers from the plaintiff society so as to establish the genuineness of Ex.D-13, D-14 Possession certificate and NOC. Those documents have to be issued with certain resolutions in absence of any such 43 OS.No. 3887/2010 resolutions in all probabilities, it is to be held that the alleged allotment letter, Possession certificate, NOC and execution of sale deed in favour of defendant No.1 is illegal, contrary to bye-laws of Society and provisions of Karnataka Co-operative Societies Act. The plaintiff however, not found to be in possession of the suit schedule property. The defendant No.2 on the basis of the illegal documents found to be in possession. The questions of defendants interference in plaintiff's possession does not arise. Once the defendants documents are illegal, it is needless to say the plaintiff is the owner of the suit schedule property and answered issues No.1 to 3 in the Affirmative, issue No.4 in the Negative, issue No.5 in the Negative and Additional issue No.1 in the Affirmative.
23. ISSUE NO.7:- The defendants have mainly contended that suit is barred by limitation since from 2002 there were many litigation were initiated before 44 OS.No. 3887/2010 the Hon'ble High Court of Karnataka, plaintiff society has contested and aware of sale deeds. There is no reason for delay.
23(a). The plaintiff in the plaint as well as evidence of PW.1 has contended that after change of management of plaintiff society over the administration of the plaintiff society on 23-04-2008 an enquiry was ordered by the Asst. Registrar of Co- operative Societies, Bengaluru in the month of March 2009, when the papers were checked with regard to sites owned by the plaintiff society the fraudulent transaction came to the knowledge. Therefore, it is contended by the plaintiff since from the date of knowledge within 3 years the suit has been filed. The defendant counsel contended that the suit has to be filed within 3 years from the date of execution of the sale deed. The registered sale deed under Sec.3 of T.P. Act is a deemed notice for registration of sale deed. The plaintiff is being the party to the sale deed 45 OS.No. 3887/2010 ought to have questioned the sale deed within 3 years.
24. The plaintiff filed a suit initially for declaration as a owner in possession, thereafter by way of amendment, the alternate relief of declaration and possession has been sought. Therefore, in the light of the alternative relief of possession sought by the plaintiff, the question that would arise for consideration is once a relief of declaration and possession is sought, whether Art.58 or 65 of Limitation Act is attracted. In this regard, it is useful to refer the judgment of Hon'ble Supreme Court in the decision of Civil Appeal No.4478/2007 Sopan Rao and another vs. Syed Mehmood and others dated 03-07-2019, wherein the suit for declaration and possession was held, the Hon'ble Apex Court in para 9 has observed that the relief of declaration and possession are sought, Art.65 of the Limitation Act is 46 OS.No. 3887/2010 applicable. The relevant portion of the judgment is extracted as follows :
"9. .... We have culled out the main prayers made in the suit hereinabove which clearly indicate that it is a suit not only for declaration but the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and, therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration that will not mean that the outer limitation of 12 years is lost. Reliance placed by the learned counsel for the appellants on the judgment of this Court in L.C. Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced. That judgment has no applicability since that case was admittedly only a suit for declaration and not a suit for both declaration and possession. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff....."
24(a). Similarly the Hon'ble High Court of Karnataka in ILR 2020 KAR 3597 M.S. Ananthamurthy vs. J. Manjula, wherein it is held that suit for declaration coupled with a prayer for 47 OS.No. 3887/2010 possession of property, Art.65 of Limitation Act is applicable.
24(b). The limitation for possession of immovable property based on title is 12 years, when the possession of defendants become adverse to the interest of owner. In the present case, the plaintiff has established that the sale deed executed by defendant No.3 in favour of defendant No.1 is illegal as he is not the member of plaintiff society. Therefore, the plaintiff found to be owner of suit schedule property and it is for the defendant to defeat the right of the plaintiff by virtue of adverse possession.
24(c). The Hon'ble High Court in ILR 2016 3114 K.V. Shivakumar and Others vs. National Institute of Mental Health and Neuro Science and others in para 145 it is held that, a suit filed based on title, but claiming declaration of title to the suit property with 48 OS.No. 3887/2010 consequential relief of possession, Art.65 would apply and Art.58 would have no application. Where the suit was filed not only for declaration but also for possession, the prescribed period of limitation is 12 years.
24(d). In the present case, the sale deed of the defendant No.1 is dated 26-09-2002 as per the recitals of sale deed the 1st defendant has taken the possession of the suit property. The suit was filed on 07-06-2010 within 12 years. Therefore, Art.58 or Art.59 is not applicable when the relief is for declaration and for possession and it apply Art.65. Therefore, there is no basis for defendants to contend that the suit is barred by limitation. On the other hand, it is well within the time of limitation. The contention of the defendants that the relief of possession is alternative relief and it will not extend the limitation period is contrary to the judgments referred above.
49
OS.No. 3887/2010 24(e). The judgments relied by the defendants counsel in (2006) 12 SCC 709 State of Punjab and another v. Balkaran Singh is not applicable to the case on hand. The said case is pertains to Art.58. Another judgment of Hon'ble High Court of Bombay in case of M/s Trienity Prime Property Projects LLP & others vs. Ramesh Pandurang Mali and others dt: 18- 07-2022 regarding rejection of plaint as barred by limitation. The facts however different to the present case on hand.
24(f). The counsel for defendants also relied upon (2008) 15 SCC 673 Ranganayakamma and another vs. K.S. Prakash (dead) by L.Rs and others., regarding Order VI rule 4 CPC, when a fraud is alleged, the particulars are required to be pleaded. In the instant case in the plaint and averments of PW.1 has stated during the enquiry order by the Asst. Commissioner in the year 2009 verifying the 50 OS.No. 3887/2010 documents pertain to said Society found that the transaction in question along with other transactions were found to be fraudulent. Upon obtaining document the suit has been filed by seeking declaration to annul the sale deeds. Even assuming that the plaintiff aware of sale deed executed by the defendant No.3 in favour of defendant No.2 in the year 2002, from that date limitation is accounted, it is well within 12 years as per Art.65 of the Limitation Act.
24(g). There is no basis for the defendants to content just merely because the possession relief is sought as alternative. The plaintiff's suit is barred by limitation, alternative relief of possession is as good as main relief, even relief of declaration is barred by limitation. Art.65 of Limitation Act regarding possession the suit is not barred by limitation. Accordingly, answered issue No.7 in the Negative. 51
OS.No. 3887/2010
25. ISSUE NO.8:- The 2nd defendant has contended that the suit is barred under Sec.118 of Karnataka Co-operative Societies Act 1959, whereas issue in respect of Karnataka Co-operative Societies Registration Act. But, in para 13 of the written statement it is vaguely contended, this Court has no jurisdiction to try the suit under Sec.118 of Karnataka Co-operative Societies Act. But, it is not demonstrated by the counsel how the suit filed by the plaintiff society against the defendant for declaration and possession is barred the jurisdiction of this Court. Sec.118 of Karnataka Co-operative Societies Act, 1959 states that no Civil, Labour, Revenue Court or Industrial Tribunal has jurisdiction over certain matters regarding registration of a Co-operative Society, bye-laws or amendments to bye-laws, removal of a committee or member thereof, disputes required to be referred to the Registrar. Under Sec.70, recovery of money under Sec.100 and winding up and dissolution of a Co-operative Society. 52
OS.No. 3887/2010 The present case challenging the sale deed executed by the defendant No.1 in favour of defendant No.2 sought for relief of declaration and possession. It is for the Civil Court has got jurisdiction to decide the rights of the parties in respect of immovable property and to give relief of declaration and possession. Therefore, the suit is not fall within the purview of Sec.118 of Karnataka Co-operative Societies Act. Accordingly, answered issue No.8 in the Negative.
26. ADDITIONAL ISSUE NO.2:- The plaintiff has contended that the plaintiff has not properly valued the suit and payment of Court fee is not sufficient. Initially, the plaintiff filed a suit for declaration and consequential relief and valued the suit under Sec.24(b) r/w Sec.38 of Karnataka Court Fee and Suit Valuation Act and valued the suit for Rs.6 lakhs and paid Court fee of Rs.39,375/-. Subsequently, possession is sought as an alternative relief along with declaration and same valuation is made and 53 OS.No. 3887/2010 additional Court fee is not paid. Once the suit is for declaration and possession Sec.24(a) r/w Sec.38 is applicable. The suit is to be valued under the said provision and Court fee has to be paid on market value of the property or Rs.1,000/- whichever is higher. The plaintiff valued the suit of Rs.6 lakh as a market value. There is no basis to value the suit for Rs.6 lakhs. Rs.6 lakhs is taken on the basis of the defendant No.2 sale deed, sale consideration amount at Ex.P-4 dated 15-06-2004. The suit was filed on 07-06-2010, the market value of the suit schedule property should have been as on the date of presentation of suit and not the sale consideration mentioned in Ex.P-4 sale deed dated 15-06-2004 of defendant No.2. Therefore, the plaintiff all to value the suit on market value as on presentation of suit under Sec.24(a) r/w Sec.38 of Karnataka Court Fee and Suit Valuation Act and to pay the Court fee accordingly. To that extent the valuation and 54 OS.No. 3887/2010 payment of Court fee is not sufficient and answered the same in partly Affirmative.
27. ADDITIONAL ISSUE NO.3:- The 3rd defendant has contended that the suit is bad for non-joinder of necessary parties. Subsequently, the defendant No.3 is dead, all the parties are before the Court. Accordingly, the suit is not bad for non-joinder of necessary parties and answered the addl. Issue No.3 in the Negative.
28. ISSUE NO.6 AND ADDL. ISSUE NO.4:- The plaintiff proved that the defendant No.1 is not the member of the plaintiff society. The 3 rd defendant directly executed the sale deed in favour of defendant No.1 at Ex.P-3 without any authority and supported by resolutions. The plaintiff no doubt is not in possession respectively entitle for possession. The suit is not barred by limitation. The 2 nd defendant has contended that after death of defendant No.3 his 55 OS.No. 3887/2010 legal heirs are to be impleaded right to sue is survived against the legal heirs. There is no basis to accept the contention.
28(a). The 2nd defendant counsel has submitted that plaintiff ought to have filed a suit for cancellation. The plaintiff being the party to the transaction and he relied upon the judgment of Andrapradesh High Court (1999) 6 ALD 20, Habeeba Begum and another vs. Gulam Rasool and others, wherein it is held that :
"A person who is aparty signatory, he has to necessarily file a suit for cancellation of the document without which any other relief sought for is not maintainable."
In the instant case, the 3rd defendant by misusing his position as a President without authority/resolution executed sale deed in favour of the defendant No.3 in the strict sense it is illegal, as such the relief of declaration to declare the sale deed of defendants No.1 and 2 is null and void and suit is maintainable. The 2nd defendant is none other than son of Shivakumar, who is Director of the plaintiff 56 OS.No. 3887/2010 society at the time when defendants No.1 and 2 sale deeds and other documents are came into existence. It cannot be ruled out involvement of Shivakumar with defendant No.3 in fabricating the documents. These documents appears to have been fabricated. The defendant No.2 is not entitled for protection as a bonafide purchaser. The defendant No.2 shall proceed against the defendant No.1 for recovery of alleged sale consideration amount. Therefore, the plaintiff is entitled for decree of declaration, possession and consequential relief. Accordingly, answered issue No.6 and additional issue No.4 in the Affirmative.
29. ISSUE NO.9: In view of my findings on issues No.1 to 8 and addl. Issues No.1 to 4, I proceed to pass the following:
57
OS.No. 3887/2010 ORDER The suit of the plaintiff is decreed with costs.
The plaintiff is declared as absolute owner of the suit schedule property.
It is further declared that the sale deed dated 26-09-2002 at Ex.P-3 and sale deed dated 15-06-2004 at Ex.P-4 executed by the defendant No.1 in favour of defendant No.2 is null and void and not binding on the plaintiff.
The defendant No.2 is directed to hand over the vacant possession of suit schedule property in favour of the plaintiff.
Further the plaintiff is directed to value the suit schedule property under Sec.24(a) r/w Sec.38 of the Karnataka Court Fee & Suit Valuation Act as on the date of filing of the suit on market value and pay the Court fee accordingly.
Subject to payment of Court fee, draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 23rd day of October 2024.) (S. NATARAJ) VI Addl.City Civil & Sessions Judge Bengaluru City.58
OS.No. 3887/2010 ANNEXURE
1. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 Sri K.A. Sudhakar - dt: 26-11-2019
(b) Defendants' side :
D.W.1 Sri Kiran Kumar - dt: 06-08-2022
2. List of documents exhibited on behalf of :
(a) Plaintiff's side : Ex.P.1 True copy of resolution dt: 16-04-2010 Ex.P.2 Notary attested copy of Bye-laws of plaintiff Ex.P.3 Certified copy of sale deed dt: 26-09-2002
executed by plaintiff in favour of defendant No.1.
Ex.P.4 Certified copy of sale deed dt: 15-06-2004 executed by defendant No.1 in favour of defendant No.2.
Ex.P.5 Membership register at Sl.No.530/SL Ex.P.5(a) Notary attested copy of Ex.P-5 Ex.P.6 Resolution dt: 28-10-2021 Ex.P.7 Certified copy of sale deed dt: 26-02-2004 Ex.P.8 Receipt dt: 12-7-2002 Ex.P.9 Receipt dt: 23-08-2002 Ex.P.10 Receipt book P.10(a) Receipt No.6328 Ex.P.11 Receipt book P.11(a) Receipt No.6328 Ex.P.12 Resolution book Ex.P.12(a) Page No.185 to 187 Ex.P.12(b) Page No.189 dt: 10-05-2004 resolution Ex.P.13 Certified copy of notice dt: 27-3-2005 of plaintiff Society 59 OS.No. 3887/2010 (b) Defendants' side : Ex.D.1 Plaintiff Society bye-law Ex.D.2 Signature of PW.1 in sale deed Ex.D.3 13th year General Body Meeting resolution Ex.D.4 to General Body Meeting notices. 10 Ex.D.10(a) Details of resolution Ex.D.11 Application of associate member Ex.D.12 Certified copy of notice issued to Muninagappa Ex.D.13 & Receipts. D.14 Ex.D.15 Site allotment letter Ex.D.16 Sale deed dated 26-09-2002 Ex.D.17 Possession certificate Ex.D.18 N.O.C. Ex.D.19 Sale deed dt: 15-06-2004 VI Addl. City Civil & Sessions Judge Bengaluru City.