Bangalore District Court
In 1. Sri.Bobby Devani @ Robert Francis vs In 1. Smt.Channamma on 19 September, 2022
KABC010004851993
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI SANTHOSHKUMAR SHETTY N ., B.Com., LL.M.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 19 th DAY OF SEPTEMBER, 2022
O.S.No.4226/1993
c/w
O.S.No.16270/1999
Plaintiff in 1. Sri.Bobby Devani @ Robert Francis
O.S.No.4226/1993: @ B.Francis
Since dead by his LRs:
1(a). Mrs.Pamela Jennifer Devaney,
W/o.late Bobby Devani
@ Robert Francis @ B.Francis
Since dead by her LRs:
Plaintiff No.1(c) to 1(f).
1(b). Mrs.Karen Rebecca Devaney,
D/o.late Robert Francis @ B.Francis.
2
O.S.No.4226/1993
c/w O.S.No.16270/1999
Since dead by her LRs:
Plaintiff No.1(c) to 1(f).
1(c). Ms.Lincoln Patrick Devaney,
Aged about 58 years,
S/o. late Bobby Devani
@ Robert Francis @ B.Francis,
R/at Flat No.04, Property No.42/1,
R.C.Apartments, Viviani Road,
Richards Town,
Bengaluru - 560 005.
1(d). Mrs.Candida Arene D Souza,
Aged about 53 years,
D/o.late Bobby Devani
@ Robert Francis @ B.Francis,
R/at Flat No.2,
Building Alemadi Properties,
Nazma Area, Doha Qutar.
1(e). Mrs.Andrea Suzanne Devaney,
Aged about 51 years,
D/o.late Bobby Devani
@ Robert Francis @ B.Francis,
R/at No.E-5-51 A,
Muniveerappa Lane,
Lingarajapuram,
Bengaluru - 560 084.
1(f). Mrs.Charmanie Mona
Antonnette George,
Aged about 49 years,
D/o.late Bobby Devani
@ Robert Francis @ B.Francis,
R/at Al-Raiz Travels,
P.O. Box No.2473,
Dubai, UAE.
(By Adv. Sri.Jwala Kumar)
3
O.S.No.4226/1993
c/w O.S.No.16270/1999
V/s.
Defendants in 1. Smt.Channamma,
O.S.No.4226/1993: W/o.Venkataswamappa,
Major in age,
R/at No.7/71, 5th Cross,
Hennur Main Road,
Lingarajapuram,
Bengaluru - 560 084.
Since dead by her LRs:
D1(a) & D1(b).
1(a). Smt.V.Jayalakshmi,
D/o.late Chinnamma,
Major in age,
Residing at Nagawara,
Near Arabic College,
Bangalore.
1(b). V.Mohan,
S/o.late Chinnamma,
Major in age,
Residing at No.7/71, 5th Cross,
Hennur Main Road,
Lingarajapuram,
Bengaluru - 560 084.
2. Smt.D.Sharada,
W/o.Dorebabu K.,
Major in age,
R/at No.10,
Venkataswamy Naidu Road,
Taskar Town,
Bengaluru - 560 001.
3. Smt.Eramma,
W/o.B.M.Munikrishnappa,
Aged about 69 years,
4
O.S.No.4226/1993
c/w O.S.No.16270/1999
R/at No.4/121,
Munivenkatappa Lane,
Lingarajapuram,
Bangalore - 560 084.
( D1 - Dead
D1(a) & 1(b) by Adv. Sri.K.Varadarajan
D2 by Adv. Smt.M.Bhagyalakshmi
D3 by Adv. Sri.M.A.Poovaiah)
Plaintiff in Smt.Eramma,
O.S.No.16270/1999: Aged about 69 years,
W/o.late B.N.Munikrishnappa,
R/at No.4/121,
Muniveerappa Lane,
Lingarajapuram,
Bangalore - 560 084.
(By Adv. Sri.M.A.Poovaiah)
V/s.
Defendant in 1. Sri.Bobby Devani @ Robert Francis
O.S.No.16270/1999: @ B.Francis
Since dead by his LRs:
1(a). Mrs.Pamela Jennifer Devaney,
W/o.late Bobby Devani
@ Robert Francis @ B.Francis
Since dead by her LRs:
Defendant No.1(c) to 1(f)
1(b). Mrs.Karen Rebecca Devaney,
D/o.late Robert Francis @ B.Francis.
5
O.S.No.4226/1993
c/w O.S.No.16270/1999
Since dead by her LRs:
Defendant No.1(c) to 1(f)
1(c). Ms.Lincoln Patrick Devaney,
Aged about 58 years,
S/o.late Bobby Devani
@ Robert Francis @ B.Francis,
R/at Flat No.04, Property No.42/1,
R.C.Apartments, Viviani Road,
Richards Town,
Bengaluru - 560 005.
1(d). Mrs.Candida Arene D'Souza,
Aged about 53 years,
D/o.late Bobby Devani
@ Robert Francis @ B.Francis,
R/at Flat No.2,
Building Alemadi Properties,
Nazma Area, Doha Qutar.
1(e). Mrs.Andrea Suzanne Devaney,
Aged about 51 years,
D/o.late Bobby Devani
@ Robert Francis @ B.Francis,
R/at No.E-5-51 A,
Muniveerappa Lane,
Lingarajapuram,
Bengaluru - 560 084.
1(f). Mrs.Charmanie Mona
Antonnette George,
Aged about 49 years,
D/o.late Bobby Devani
@ Robert Francis @ B.Francis,
R/at Al-Raiz Travels,
P.O. Box No.2473,
Dubai, UAE.
( D1, D1(a) & D1(b) - Dead
6
O.S.No.4226/1993
c/w O.S.No.16270/1999
D1(c) by Adv. G.K.Suresha
D1(d) & 1(f) - Exparte
D1(e) - Absent)
Date of the institution of suit in 08.07.1993
O.S.No.4226/1993:
Date of the institution of suit in 15.10.1999
O.S.No.16270/1999:
Nature of the suit in Specific Performance
O.S.No.4226/1993:
Nature of the suit in Declaration & Possession
O.S.No.16270/1999:
Date of the commencement of 14.09.2006
recording of evidence in
O.S.No.4226/1993 c/w
O.S.No.16270/1999
Date on which the common 19.09.2022
judgment was pronounced in
O.S.No.4226/1993 c/w
O.S.No.16270/1999:
Total duration: Year/s Month/s Day/s
In O.S.No.4226/1993: 29 02 11
In O.S.No.16270/1999: 22 11 04
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
7
O.S.No.4226/1993
c/w O.S.No.16270/1999
COMMON JUDGMENT
O.S.No.4226/1993 has been filed the plaintiff for the
relief of specific performance of contract to direct the
defendants No.1 to 3 to execute the necessary Sale Deed in
his favour in respect of suit schedule property and in case, the
defendants fail to execute the Sale Deed, to get the Sale Deed
through the process of the court and for the cost of the suit.
2. O.S.No.16270/1999 has been filed by the plaintiff for
the relief of declaration of her title and to direct the defendant
to vacate the vacant possession of the suit schedule property
and for the cost of the suit.
3. The brief facts of the case of the plaintiff in
O.S.No.4226/1993 is that, the defendant No.2 is the absolute
owner of the suit property bearing No.E/5/51A, measuring East
to West: 27¼ feet and North to South: 50 feet, consisting of 1¼
square asbestos sheet roofed house, now consisting of three
floor RCC building, situated at Muniveerappa Lane,
Lingarajapuram, Kasaba Hobli, Bangalore North Taluk. She
sold the suit property to the defendant No.1 and executed GPA
in her favour. Subsequent to the GPA, the defendant No.1
approached the plaintiff in the first week of January, 1988 and
assured to sell the suit schedule property for the valuable
consideration of Rs.45,000/- (Rupees Forty Five Thousand
only). In view of the assurance given by the defendant No.1,
the plaintiff has paid the sum of Rs.16,000/- (Rupees Sixteen
8
O.S.No.4226/1993
c/w O.S.No.16270/1999
Thousand only) as advance on 16.01.1988. On the said date
itself, the defendant No.1 put the plaintiff in physical possession
of the suit schedule property. Xerox copy of the Agreement to
Sell dated 16.01.1988 was produced along with the suit. As per
the terms and conditions of the Agreement, the plaintiff was
required to pay Rs.29,000/- (Rupees Twenty Nine Thousand
only) and got the Sale Deed in his favour. Since there was
prohibition for registration of revenue sites, the defendant No.1
promised to execute the Sale Deed within six months from the
date of the Agreement. In the 2 nd week of July 1988, the son of
defendant No.1 by name V.Mohan [now defendant No.1(b)]
approached the plaintiff and requested him to pay the balance
sale consideration of Rs.29,000/- (Rupees Twenty Nine
Thousand only), but the plaintiff insisted the defendant No.1 to
execute the GPA and Affidavit in his favour due to prohibition of
registration of revenue sites. Thereafter the defendant No.1
had persuaded the plaintiff to pay Rs.25,000/- (Rupees Twenty
Five Thousand only), out of the balance sale consideration of
Rs.29,000/- (Rupees Twenty Nine Thousand only). Accordingly,
the plaintiff has paid the sum of Rs.25,000/- (Rupees Twenty
Five Thousand only) to the aforesaid V.Mohan on 08.07.1988
and obtained a consideration receipt. Again on 14.07.1988, the
defendant No.1 approached the plaintiff and demanded to pay
the balance sale consideration of Rs.4,000/- (Rupees Four
Thousand only) stating that, she is ready to execute the GPA
and Affidavit in favour of the plaintiff and promised to execute
the Sale Deed as and when the prohibition relaxed.
9
O.S.No.4226/1993
c/w O.S.No.16270/1999
Consequent upon the handing over the physical possession of
the suit schedule property, the plaintiff had demolished the old
structure and constructed three storied building by spending
huge sum of money. The construction was completed in the 2 nd
week of December, 1988. The plaintiff has dug a bore-well in
the suit schedule property and performed the House Warming
Ceremony on 25.12.1988. The plaintiff had occupied the first
and second floors in the main building and the remaining
portions are let out to the different tenants. In the month of
November 1988, when one D.Arulappa, the owner of adjacent
site bearing No.E5/50 had objected the construction made by
the plaintiff claiming that, the plaintiff had encroached his site
and accordingly, the property was measured, he came to know
that, on Western side measuring East to West: 1¼ feet and
North to South: 50 feet was encroached by the plaintiff.
Thereafter, the plaintiff had purchased the encroached portion
for the valuable consideration by virtue of an Agreement to Sell
dated 15.11.1988. Accordingly, the plaintiff is in exclusive
possession and enjoyment of East to West: 28½ feet and North
to South: 50 feet. In the first week of October 1990, the
defendant No.3, who is none other than the daughter of
defendant No.1, tried to dispossess the plaintiff from the suit
schedule property saying that, she has purchased the property.
Again in the 2nd week of January 1991, she tried to trespass into
the suit schedule property. Hence the plaintiff was constrained
to file a suit for the relief of permanent injunction against the
defendant No.3 in O.S.No.1342/1991 on the file of City Civil
10
O.S.No.4226/1993
c/w O.S.No.16270/1999
Court, Bangalore and there was an order of temporary
injunction in favour of the plaintiff. Then on verification, the
plaintiff came to know that, the defendant No.1 got the Sale
Deed executed in favour of defendant No.3. Thereafter the
plaintiff got issued a legal notice on 28.01.1991 and copies of
the notice were sent to the defendants No.1 and 2 including the
aforesaid V.Mohan, calling upon the defendant No.3 to execute
the Registered Sale Deed in his favour. Though notices were
served upon the defendants No.1 and 3, they have not chosen
to perform their part of the contract and not even issued the
reply. The defendant No.2 sent a reply on 27.02.1991 clearly
admitting the fact that, she had executed a GPA in favour of the
defendant No.1 and further stated that, at the instigation of
defendant No.1, she got executed the Sale Deed in favour of
defendant No.3. Since the Sale Agreement in favour of the
plaintiff dated 16.01.1988 is subsisting, the defendant No.1 had
committed the breach of contract and get the Sale Deed in
favour of defendant No.3, is void and not binding on the plaintiff.
Knowing fully well that, the plaintiff is the absolute owner of the
suit schedule property, the defendant No.3 filed an Eviction
Petition in HRC.No.1959/1991 on the file of Court of Additional
Small Causes, Bangalore. The prohibition of registration of
revenue sites was relaxed in the last week of February, 1991.
But the defendant No.1 goes on postponing the registration of
Sale Deed for one or the other pretext. Hence the plaintiff got
issued a legal notice to the defendant No.1, calling upon her to
execute the Sale Deed. Inspite of notice, she did not choose to
11
O.S.No.4226/1993
c/w O.S.No.16270/1999
issue any reply and failed to execute the Sale Deed. Knowing
fully well about the transaction in favour of the plaintiff, the
defendant No.3 got the Sale Deed in her favour. Hence she is
not a bonafide purchaser. Hence the plaintiff was constrained
to file this suit. During the pendency of the suit, the plaintiff died
and his widow and children were came on record as plaintiff
No.1(a) to 1(f). Thereafter, plaintiff No.1(a) died and necessary
amendment has been made stating that plaintiff No.1(b) to 1(f)
are her legal heirs.
4. In response to the suit summons, the defendants No.1
to 3 appeared through their respective counsel. The defendants
No.1 and 3 have filed their common written statement admitting
that, the defendant No.2 was the absolute owner of the suit
schedule property and contended that, when defendant No.3
filed the HRC Petition to evict the plaintiff from the suit schedule
property, he resorted to illegal acts by creating and concocting
the alleged Agreement to Sell and filed this suit with an ulterior
motive. It is false that, the alleged notice was served on the
defendants No.1 and 3 and they did not choose to perform their
part of the contract. There was no need or occasion to them to
perform the alleged contract. The alleged reply sent by the
defendant No.2 to the so called notice is a collusive and
concocted document. It is submitted that, the defendant No.1
has not sold the suit schedule property in favour of defendant
No.3. All those allegations were made with an ulterior motive
knowing fully well that the defendant No.3 is the owner of the
12
O.S.No.4226/1993
c/w O.S.No.16270/1999
suit schedule property and the plaintiff being a tenant resisting
the Eviction Petition making all efforts in creating and
concocting false documents. Since the defendant No.3 is the
owner of the suit schedule property and the plaintiff being a
tenant under her, she filed an Eviction Petition against the
plaintiff, who is an undesirable tenant and attempting to create
the documents to lay false claim over the suit schedule
property. The plaintiff has not put up any construction and he
has no right to put up the construction. The so called Agreement
to Sell dated 16.01.1988 on the face of it, is a concocted and
created document. The plaintiff suppressed the true facts. One
Venkatesh was the owner of the entire property bearing No.649
and Khatha No.1293, situated at Lingarajapuram and said
Venkatesh sold the entire property in favour of Muniramaiah
under a Registered Sale Deed dated 15.12.1962. The said
Muniramaih was in possession and enjoyment of the entire
property and he sold half portion in favour of one Smt.Shami
Unnissa under a Registered Sale Deed dated 27.12.1972. In
turn, said Smt.Shami Unnissa sold the said property in favour of
defendant No.2 under a Registered Sale Deed dated
18.09.1974. The defendant No.2 entered into an Agreement
with the defendant No.3 on 12.05.1983 by agreeing to sell the
said property for a total sale consideration of Rs.90,000/-
(Rupees Ninety Thousand only). After receiving the entire
consideration amount, the defendant No.3 was put in
possession of the suit schedule property. Thereafter the
defendant No.3 obtained license from the Grama Panchayath
13
O.S.No.4226/1993
c/w O.S.No.16270/1999
and put up construction consisting of three storied building.
Then she let out the premises. The plaintiff began to use the
premises for illegal purpose. Hence the defendant No.3 and
other members lodged a complaint. Subsequently, as the
plaintiff failed to pay the rent, the defendant No.3 was
constrained to filed Eviction Petition in HRC.No.1959/1991. In
pursuance of the Agreement, the defendant No.2 executed the
Registered Sale Deed in favour of the defendant No.3 on
14.07.1988 and khatha came to be changed in her name.
Hence she has paid the tax in respect of the suit schedule
property. The plaintiff is involved in several criminal acts and
the cases have been registered against him at Banasawadi and
Sampangiramanagar Police Stations. That itself shows the
fraudulent conduct of the plaintiff. The suit is also barred by
limitation and thereby prayed to dismiss the suit with exemplary
costs. During the pendency of the suit, defendant No.1 died and
her other children were brought on record as defendant No.1(a)
and 1(b). They too filed an additional written statement along
with defendant No.3 by reiterating the written statement filed by
the defendants No.1 and 3. The defendant No.2 not selected to
file the written statement.
5. On the basis of the pleadings of the parties, my
predecessor-in-office has framed the following issues for
determination:-
ISSUES IN O.S.No.4226/1993
1. Whether the plaintiff proves the due execution of
Sale Agreement by the defendants for
14
O.S.No.4226/1993
c/w O.S.No.16270/1999
Rs.45,000/- dated 16.01.1988 as contended?
2. Whether the plaintiff proves the payment of
advance amount to the defendant as contended
Rs.29,000/-?
3. Whether the plaintiff proves that he is in
possession and enjoyment of the property as
contended?
4. Whether the defendants prove that the suit
document is a concocted and fabricated
document as contended?
5. Whether the plaintiff proves that he was always
ready and willing to perform his part of contract
as contended?
6. Whether the plaintiff proves that the transaction
between defendant No.2 and defendant No.3 is
illegal and void?
7. Whether the plaintiff is entitled for the relief
sought for?
8. What order or decree?
6. The brief facts of the case of the plaintiff in
O.S.No.16270/1999 is that, one Smt.Sharada was the owner of
the suit schedule property bearing No.649, Khatha No.1293,
measuring East to West: 27.5 feet and North to South: 50 feet,
bounded on East by: Kapinappa's Property, West by: Arulappa's
Property, North by: Anthoniraj's Property and South by: Road,
situated at Lingarajapuram, Bangalore North Taluk. On
12.05.1983, the aforesaid Smt.Sharada entered into an
Agreement to Sell with the plaintiff for total consideration of
15
O.S.No.4226/1993
c/w O.S.No.16270/1999
Rs.90,000/- (Rupees Ninety Thousand only). After receiving the
entire sale consideration, the plaintiff was put in possession of
the suit schedule property on the said date. The execution and
registration of a Sale Deed was postponed as there was a
Government embargo for registration of revenue sites. Then the
plaintiff put up a residential building thereon with the assistance
of Smt.Sharada. On 05.12.1988, she let out the property to the
defendant as per Lease Agreement. On 27.09.1990, the
aforesaid Smt.Sharada executed a Registered Sale Deed in
respect of the suit schedule property in favour of the plaintiff.
As the defendant did not pay rent, the plaintiff has filed
HRC.No.1959/1991 against the defendant. As the defendant
denied the relationship of landlord and tenant, the petition was
dismissed. As against the said order, the plaintiff preferred a
Revision Petition on the file of Hon'ble High Court and the
matter was remanded to the Trial Court. On 01.10.1999, the
petition came to dismissed holding that, there is no relationship
of landlord and tenant and option was given to the plaintiff to
approach the Civil Court for redressal. As the defendant has
denied the title of the plaintiff and set up an Agreement to Sell,
she filed the suit against the plaintiff and others in
O.S.No.4226/1993.
7. In response to the suit summons, the defendant
appeared through his counsel and filed his written statement.
By denying the allegations levelled against him the defendant
has contended that, the suit schedule property is a revenue
site and at no point of time, it was assessed for taxes and no
16
O.S.No.4226/1993
c/w O.S.No.16270/1999
khatha was issued by the Village Panchayath. Even to this
day, defendant's property is a revenue site having property
No.E5/51. The property number mentioned in the plaint
schedule and property of this defendant are altogether different
and separate. The plaintiff is trying to knock off the property of
this defendant by mentioning the boundaries of defendant's
property. Further, the allegations made in the plaint that, she
had constructed a large residential building consisting of 3
floors and out house, for the purpose of avoiding the stamp
duty, the size of the building was shown as very small and ill
equipped are denied as false. Neither the plaintiff nor
Smt.Sharada had put up any construction in the property of the
defendant. Further, the plaintiff had openly admitting that, she
avoided to pay the stamp duty. That itself shows her conduct.
As the plaintiff along with her mother interfere with the
possession of the defendant, he was constrained to file a suit
in O.S.No.1342/1991 and obtained an ad-interim order of
injunction. Subsequently, the plaintiff filed HRC Petition as a
counter blast and same was dismissed holding that, there is no
relationship of landlord and tenant. The plaintiff and her mother
colluded with Smt.Sharada played fraud to knock off the
property of the defendant. As the plaintiff, her mother and
Smt.Sharada failed to execute the Sale Deed, the defendant
was constrained to file a suit in O.S.No.4226/1993 for specific
performance of contract. Since the Agreement to Sell dated
16.01.1988 executed by Smt.Channamma is subsisting and
same was admitted by Smt.Sharada, as such Sale Deed dated
17
O.S.No.4226/1993
c/w O.S.No.16270/1999
27.09.1990 is a void document and no right devolved upon the
plaintiff. The suit was not properly valued and the court paid is
insufficient. Hence, amongst other grounds, he prayed for
dismissal of the suit with exemplary costs.
8. On the basis of the pleadings of the parties, my
predecessor-in-office has framed the following issues for
determination:-
ISSUES IN O.S.No.16270/1999
1. Whether plaintiff proves that she is owner of suit
schedule property?
2. Whether plaintiff proves that she constructed ground,
first and second floor and outhouse?
3. Whether plaintiff proves that she has permitted
defendant to occupy the suit property?
4. Whether plaintiff is entitled to relief of declaration and
possession?
5. Whether valuation made and Court fee paid is not
proper?
6. What order or decree?
9. As per Order dated 19.07.2005, O.S.No.16270/1999
has been clubbed with O.S.No.4226/1993 for the purpose of
recording common evidence. For convenience and brevity,
hereinafter the plaintiff in O.S.No.4226/1993 will be called as
plaintiff and the defendants in the said suit will be called as
18
O.S.No.4226/1993
c/w O.S.No.16270/1999
defendants. Accordingly, the plaintiff in O.S.No.4226/1993 has
entered into the witness box as PW-1. After partial cross-
examination of PW-1, he reported to be dead and his widow
and children came on record as Ex.P.1(a) to 1(f). The plaintiff
No.1(a) has entered into the witness box as PW-2 and she was
extensively cross-examined on behalf of the defendants No.1
and 3. But before conclusion of her cross-examination, PW-2
reported to be dead. Thereafter her daughter i.e., plaintiff
No.1(d) has entered into the box as PW-3 and she was fully
cross-examined and Ex.P.1 to P.118 were marked through her.
On behalf of the plaintiffs, an attesting witness to the Sale
Agreement of the plaintiff by name H.T.Yellappa has entered
into the witness box as PW-4 and closed their side. In the mean
time, defendant No.1 - Smt.Channamma reported to be dead
and her other children brought on record as defendant No.1(a)
and 1(b). On behalf of the defendants No.1 and 3, the GPA
Holder of defendant No.3 has entered into box as DW-1 and in
all 12 documents have been marked through her at Ex.D.1 to
D12 and closed their side.
10. Heard the arguments of learned counsel for the
plaintiff and defendants.
11. My findings on the above issues are as under:-
IN O.S.No.4226/1993
Issue No.1: In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: In the affirmative.
19
O.S.No.4226/1993
c/w O.S.No.16270/1999
Issue No.4: In the negative.
Issue No.5: In the affirmative.
Issue No.6: In the affirmative.
Issue No.7: In the affirmative.
Issue No.8: As per final order,
for the following reasons.
IN O.S.No.16270/1999
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: In the negative.
Issue No.5: As per findings.
Issue No.6: As per final order,
for the following reasons.
REASONS
12. Issues No.1 to 6 in O.S.No.4226/1993 and
Issues No.1 to 3 in O.S.No.16270/1999: - Since all these
Issues are interconnected, taken up together for discussion to
avoid repetition. Before looking into the point in controversy,
first of all, it is necessary to notice some of the undisputed
facts. The subject matter in both the suits is one and the
same. It is also admitted that the defendant No.2 -
Smt.Sharada was the owner of the suit schedule property.
O.S.No.4226/1993 was filed by the plaintiff for the relief of
specific performance of contract and the other suit was filed
by defendant No.3 for the relief of declaration of her title and
for possession of the property. In O.S.No.4226/1993 in all 3
defendants. However, O.S.No.16270/1999 was filed by
20
O.S.No.4226/1993
c/w O.S.No.16270/1999
defendant No.3 alone against the plaintiff in
O.S.No.4226/1993. It is not in dispute that defendant No.3 is
the daughter of defendant No.1.
13. The specific case of the plaintiff/ his legal heirs is
that, on 25.04.1987, the defendant No.2 executed a General
Power of Attorney marked at Ex.P.5, in favour of defendant
No.1 in respect of the suit schedule property and thereby
delegated all powers to deal with the property as per the will
and wish of defendant No.1. Accordingly, by virtue of the said
GPA, the defendant No.1 claiming to be the owner of the suit
schedule property, executed an Agreement to Sell dated
16.01.1988 marked at Ex.P.1, in favour of the plaintiff in
respect of the suit schedule property, for total sale
consideration of Rs.45,000/- (Rupees Forty Five Thousand
only) and received Rs.16,000/- (Rupees Sixteen Thousand
only) as earnest money. As there was prohibition for
registration of revenue sites, the defendant No.1 promised the
plaintiff to execute the full fledged Sale Deed as and when the
restriction is relaxed by receiving the balance sale
consideration of Rs.29,000/- (Rupees Twenty Nine Thousand
only). On 08.07.1988, the defendant No.1 has received
Rs.25,000/- (Rupees Twenty Five Thousand only) from the
plaintiff through her son Mohan [now defendant No.1(b)] to
meet her financial difficulty. Thereafter, on 14.07.1988, the
defendant No.1 received the remaining sum of Rs.4,000/-
(Rupees Four Thousand only) through her son Mohan and
21
O.S.No.4226/1993
c/w O.S.No.16270/1999
she made a shara on the Sale Agreement and permitted the
plaintiff to exercise all acts of ownership over the said
property and promised to execute the Sale Deed as and when
prohibition is relaxed. On 12.07.1988, the defendant No.1
executed a GPA marked at Ex.P.3, in favour of the plaintiff
and thereby authorised him to do all acts and things in
respect of the suit schedule property.
14. By virtue of the Sale Agreement and irrevocable
General Power of Attorney, the plaintiff had demolished the old
structure existing in the suit schedule property and constructed
three storied building as per Plan, marked at Ex.P.6. Further
case of the plaintiff is that, he dug a bore-well in the suit
schedule property by spending huge sum of money and in
support of the said contention, he relied on Cash Bill marked
at Ex.P.8 issued by Shree Bhgya Lakshmi Bore Wells,
Madiwala, Bangalore. Regarding construction of building and
purchase of various materials, the plaintiff has relied on
voluminous Receipts marked at Ex.P.9 to P.26. Further case of
the plaintiff is that, House Warming Ceremony was held on
25.12.1998 and in support of the said contention, he relied on
Invitation Cards marked at Ex.P.27 and Ex.P.112 and
voluminous colour Photographs marked at Ex.P.28 to P.35,
P.113 to P.115 with negatives. Immediately after House
Warming Ceremony, the plaintiff and his family members
started residing in the portion of the house and the remaining
tenements have been given in rent in favour of his tenants and
22
O.S.No.4226/1993
c/w O.S.No.16270/1999
in support of the said contention, the plaintiff has produced the
Rent Agreements marked at Ex.P.36 to P.40. Ex.P.41 to P.73
are the Rent Receipts regarding rent collected from his tenants.
Further contention of the plaintiff is that, earlier the power
connection was in the name of defendant No.2. Thereafter he
got changed the connection in his name and in that regard, he
relied on the certified copy of Office Memorandum issued by
the then Karnataka Electricity Board dated 25.05.1993, marked
at Ex.P.74. Further, he produced the voluminous Electricity Bills
and Receipts marked at Ex.P.75 to P.90.
15. Further case of the plaintiff is that, as the defendants
No.1(b), 2 and 3 unnecessarily interfered with his possession
over the suit schedule property, he was constrained to file a suit
in O.S.No.1342/1991 on the file of VII Addl. City Civil Judge,
Bangalore and the said suit came be decreed on 04.10.1999.
In support of the said contention, he has produced the certified
copy of Judgment and Decree marked at Ex.P.94 and P.94(a),
wherein it is clear that, the suit was decreed in favour of the
plaintiff restraining the defendant from interfering with the
possession of the plaintiff, except due process of law.
16. The defendant No.3-Smt.Eramma is the contesting
defendant. Her specific case is that, on 12.05.1983 itself,
receiving the entire sale consideration of Rs.90,000/- (Rupees
Ninety Thousand only), the defendant No.2 executed a Sale
Agreement in her favour. Thereafter, on 27.09.1990, the
defendant No.2 executed Sale Deed in her favour and thereby
23
O.S.No.4226/1993
c/w O.S.No.16270/1999
she became the owner of the suit schedule property. She
inducted the plaintiff into the suit property as tenant. As he
acting detrimental to her interest, she filed the Eviction Petition
in HRC.No.1959/1991, on the file of Small Causes Court. As
the jural relationship of landlord and tenant was denied by the
plaintiff in the said petition, she was constrained to file
O.S.No.16270/1999 for declaration of her title and eviction of
the plaintiff from the suit schedule property. Only when she
initiated proceedings for eviction of the plaintiff by filing the
aforesaid HRC petition, the plaintiff got created the alleged
Sale Agreement in his favour and instituted the suit for the relief
of specific performance of contract. As the defendant No.1 was
not the owner of the suit schedule property, there was no
occasion for defendant No.1 to execute the Sale Agreement in
favour of plaintiff. Further, contended that, the alleged Sale
Agreement and Affidavit and other documents relied by the
plaintiff are all created to suit his convenience.
17. This being the state of affair, the heavy burden is
upon the plaintiff to prove that, the defendant No.1 being the
General Power of Attorney Holder of defendant No.2 executed
the Sale Agreement in his favour and received the entire sale
consideration of Rs.45,000/- (Rupees Forty Five Thousand
only) and also executed an Irrevocable Power of Attorney in his
favour. As there was prohibition for alienation of revenue land,
the defendant No.1 promised to execute the full fledged Sale
Deed as and when prohibition is lifted. The possession was
also delivered to him and thereafter exercising his rights over
24
O.S.No.4226/1993
c/w O.S.No.16270/1999
the suit schedule property, demolished the old structure therein
and constructed the multi-storied building. As the entire sale
consideration was paid and he is in continuous possession and
enjoyment of the same, the only thing left open is the
ministerial act of execution of Sale Deed. If the plaintiff is able
to establish all such contentions, he is entitled for the relief as
prayed for and the suit of defendant No.3 does not survive for
consideration.
18. Placing reliance on both oral and documentary
evidence, the learned counsel for plaintiff has argued that,
Ex.P.5 is the General Power of Attorney executed by defendant
No.2 in favour of defendant No.1, permitting her to exercise all
powers including right to alienate the property. On the strength
of powers accrued under Ex.P.5, the defendant No.1 executed
the Sale Agreement in favour of plaintiff as per Ex.P.1 and
thereafter received the balance sale consideration. As
possession was handed over to the plaintiff and he was
permitted to exercise all such powers, demolishing old
structure, he constructed the multi-storied building in the suit
schedule property and residing in one such portions of the
property and other tenements have been given on rent and
now, there are several tenants under the plaintiff in respect of
other portions of the suit schedule property. In support of such
contention, he relied on voluminous Rent Receipts marked at
Ex.P.41 to P.73 and Rent Agreements marked at Ex.P.36 to
P.40. The possession of the plaintiff was proved in the suit
instituted by him in O.S.No.1342/1991 and HRC.No.1959/1991.
25
O.S.No.4226/1993
c/w O.S.No.16270/1999
In support of said contention, he relied on Ex.P.94 to P.96.
Original Sale Agreement was produced in HRC proceedings
and after obtaining its certified copy, same was produced in this
suit and marked as Ex.P.1. Further, the plaintiff has assigned
valid reasons for non- production of original Sale Agreement. In
such circumstances, the plaintiffs No.1(c) to 1(f) are entitled to
get the Sale Deed in their favour.
19. Refuting each and every contentions taken by the
plaintiff, the learned counsel for defendant No.3 has
vehemently argued that, the defendant No.3 being the owner of
the property, to regain possession of the suit schedule property
for her bonafide requirements, she filed the aforesaid HRC
petition. Only after institution of the said petition, the plaintiff
has filed this suit. As this suit is filed long after the alleged
Agreement, suit is barred by limitation. In support of his
arguments, the learned counsel for defendant No.3 has relied
upon the following decisions:
1. AIR 2006 Punjab and Haryana 42; Mukhtiar
Singh Vs. Makhan Singh.
2. AIR 2008 Punjab and Haryana 93; Ranjit
Singh Vs. Shakti Singh and others.
3. AIR 2004 Madras 8; Surygandhi Vs.
Lourduswamy.
20. The sum and substance of those decisions is that,
the suit for specific performance of contract instituted after
26
O.S.No.4226/1993
c/w O.S.No.16270/1999
several years of Sale Agreement is hopelessly barred by
limitation. In the case of Surygandhi Vs. Lourduswamy cited
above, it was further held that, "Though time was not essence
of contract, his claiming specific performance after 9 years was
not within reasonable time."
21. Further argued that, admittedly the defendant No.2
was the absolute owner of the suit schedule property. Since the
defendant No.2 herself executed Registered Sale Deed in
favour of defendant No.3 and conveyed title in favour of
defendant No.3, she became the absolute owner of the suit
schedule property. She got obtained Plan from the Competent
Authority and put up construction in the suit schedule property.
In support of said arguments, he placed reliance on Ex.D.2 -
Sanctioned Plan, Ex.D.3 - Original Sale Deed and other
documents marked at Ex.D.4 to D.12. Even if, there is Sale
Agreement in favour of the plaintiff, he may not kept quiet for
such a long time and that itself shows that, only after institution
of HRC proceedings, he got created the documents and filed
the aforesaid suit. Such being the case, looking from any angle,
the plaintiff is not entitled for any relief. In support of said
contention, he relied on the decision of the Apex Court reported
in (2004) 11 SCC 186; Appineni Vidyasagar Vs. State of
A.P. and others. In the said decision, it was held as under:
"Unregistered Sale Deed if conveys any title
or interest in the land - Transferor of land
surrendering certain of his holdings under land
ceiling statute, including piece of land transferred
27
O.S.No.4226/1993
c/w O.S.No.16270/1999
to appellant by an unregistered Sale Deed -
Appellant in possession of said piece of land -
Validity and permissibility of such surrender - On
facts, even a claim based on adverse possession
on part of the appellant had been negatived -
Registration Act, 1908 - Section 17."
22. Further canvassed before the court that, Agreement
not containing stipulation for amount of consideration, same is
void and unenforceable. In support of said contention, he relied
on the decision of Patna High Court reported in AIR 1991
Patna 192; Rabindra Nath Sahu Vs. Mrs. Maya Devi and
another. In the said decision, it was held as under:
"Suit for specific performance - Sale of land -
Agreement not containing stipulation for amount
of consideration - No separate Agreement or
understanding between parties about the same
- Agreement void and not enforceable."
23. The learned counsel for defendant No.3 further
argued that, the relief of specific performance is an equitable
relief and such relief can be granted to the parties, who are due
diligence in exercising their power well in time. Further, the
parties have to comply all the requirements as stipulated under
the Specific Relief Act. The manner in which the plaintiff
instituted his suit makes it clear that, the documents placed by
him are created. To substantiate his arguments, relied on the
decision of Apex Court reported in AIR 2019 SC 459; Kamal
Kumar Vs. Premlata Joshi and others. In the said decision,
it was held as under:
28
O.S.No.4226/1993
c/w O.S.No.16270/1999
"It is a settled principle of law that the grant of
relief of specific performance is a discretionary
and equitable relief. The material questions,
which are required to be gone into for grant of
the relief of specific performance, are First,
whether there exists a valid and concluded
contract between the parties for sale/purchase
of the suit property; Second, whether the plaintiff
has been ready and willing to perform his part of
contract and whether he is still ready and willing
to perform his part as mentioned in the contract;
Third, whether the plaintiff has, in fact,
performed his part of the contract and, if so, how
and to what extent and in what manner he has
performed and whether such performance was
in conformity with the terms of the contract;
Fourth, whether it will be equitable to grant the
relief of specific performance to the plaintiff
against the defendant in relation to suit property
or it will cause any kind of hardship to the
defendant and, if so, how and in what manner
and the extent if such relief is eventually granted
to the plaintiff; and lastly, whether the plaintiff is
entitled for grant of any other alternative relief,
namely, refund of earnest money etc. and, if so,
on what grounds."
24. Keeping in mind the law laid down in the
aforementioned decisions, it is necessary to make a re-look on
the facts of the case. The possession of the plaintiff over the
suit schedule property much prior to institution of HRC
proceedings to this date is not in dispute. According to the
plaintiff, he continued to be in possession and enjoyment of the
suit schedule property as a matter of right since he paid the
entire sale consideration amount to the erstwhile owner of the
property through her lawful attorney i.e., defendant No.1. On
29
O.S.No.4226/1993
c/w O.S.No.16270/1999
the contrary, the defendant No.3, even though admitted the
possession of the plaintiff over the suit schedule property, her
definite case is that, he is in possession of the suit schedule
property as a tenant under her.
25. To establish his case, the plaintiff has relied upon the
voluminous documents marked at Ex.P.1 to P.118. Ex.P.96 is
the certified copy of Order passed in HRC.No.1959/1991. The
said order makes it very clear that, the plaintiff has produced
his Sale Agreement dated 16.01.1988 in the said proceedings
and same was marked as Ex.R.2. But the original has not
been placed before this court and the certified copy of the
same obtained in the said proceedings is produced before the
court and marked as Ex.P.1. For non-production of original
Sale Agreement, the plaintiff gave an explanation that, in the
year 2004 when he was at Chennai, the original Sale
Agreement was also with him and it was destroyed in the
Tsunami attack. To show the loss of his property, the plaintiff
has produced Ex.P.98 to P.104. Ex.P.98 is the Representation
dated 18.05.2005 to the then Chief Minister of Tamil Nadu,
expressing his grievance with regard to the damage caused to
his property. Ex.P.98(a) and P.99 are the corresponding
documents with respect to said representation. Even though
the defendants have denied the genuinuity of the Sale
Agreement relied by the plaintiff, they have not denied the
production of the said document in the aforesaid HRC
proceedings and Tsunami attack in the year 2004. Since Ex.P.1
is the certified copy of the Sale Agreement and for the reasons
30
O.S.No.4226/1993
c/w O.S.No.16270/1999
assigned by the plaintiff, there is no reason to this court to take
an adverse inference with regard to non-production of the
original Sale Agreement and to disbelieve the evidentiary value
attached to Ex.P.1.
26. On perusal of Sale Agreement, there are recitals in
the Agreement that, same was executed by defendant No.1 in
favour of plaintiff by agreeing to sell the suit schedule property
for total consideration of Rs.45,000/- (Rupees Forty Five
Thousand only) and as on the date of Agreement, the plaintiff
had paid Rs.16,000/- (Rupees Sixteen Thousand only) as
earnest money and promised to pay the balance sum of
Rs.29,000/- (Rupees Twenty Nine Thousand only) within six
months from the date of Agreement.
27. Further case of the plaintiff is that, after execution of
Sale Agreement, on 08.07.1988 at the request of defendant
No.1, he has paid the sum of Rs.25,000/- (Rupees Twenty Five
Thousand only) and the said amount was collected by her son
Mohan i.e., defendant No.1(b). Ex.P.2 is the Receipt executed
by defendant No.1(b) in favour of plaintiff. Further case of the
plaintiff is that, the balance sum of Rs.4,000/- (Rupees Four
Thousand only) was paid to defendant No.1. Ex.P.3 is the
General Power of Attorney dated 12.07.1988 executed by the
defendant No.1 in favour of plaintiff, wherein she claims that,
she is the absolute owner of the suit schedule property as per
right transferred by defendant No.2 in the said document.
Ex.P.4 is the Affidavit executed by defendant No.1 in favour of
31
O.S.No.4226/1993
c/w O.S.No.16270/1999
plaintiff on 14.07.1988. Ex.P.5 is the Irrevocable Power of
Attorney executed by defendant No.2 in favour of defendant
No.1 to deal with the property as she likes.
28. To substantiate the claim of execution of Agreement
in favour of the plaintiff and delivery of possession in his
favour and payment of earnest money, the plaintiff was relied
on the oral testimony of PW.4-H.T.Yellappa, one of the
witnesses to the document. In clear terms, he deposed that,
he was present at the time of Sale Agreement executed by
defendant No.1 in favour of plaintiff and he has identified his
signature on the Sale Agreement and LTM of defendant No.1.
Further deposed that, on 14.07.1988, when the defendant
No.1 had received the balance consideration of Rs.4,000/-
(Rupees Four Thousand only) he was present and defendant
No.1 made a Shara on Ex.P.1 and he has put his signature to
the Shara and his signature was marked as Ex.P.1(c).
29. On perusal of defence set up by defendants No.1
and 3, the defendant No.3 has attacked on the character of
plaintiff and contended that, there were several criminal cases
registered against him. Further alleged that, he was running a
brothel and when police started investigation he left
Bengaluru and hiding in Tamil Nadu. But the plaintiff himself
has entered into the witness box as PW-1. On perusal of his
evidence, it is clearly forthcoming that, earlier he was working
in the Railway Department and took voluntary retirement on
account of his ill health and started small business on his own
32
O.S.No.4226/1993
c/w O.S.No.16270/1999
for his livelihood. The defendant No.3 was running a chit
business and he contributing to chit run by defendant No.3
and thereby he came in contact with defendant No.1, who
was residing on the opposite side to the suit schedule
property. After conclusion of his examination-in-chief, on two
occasions he has been cross-examined by the learned
counsel for defendants No.1 and 3. But never put any
suggestion to the witness touching his character and he was
running a brothel. It is also relevant to mention that, on
27.05.2009, PW-1 was cross-examined in length and
thereafter, the counsel appearing for plaintiff took time
assigning reason that, PW-1 was not keeping good health.
Thereafter, as his health deteriorated, he executed a Power of
Attorney to his wife and she entered into the witness box as
PW-2 and she was extensively cross-examined by the
learned counsel for defendants No.1 and 3 on 16.03.2011,
30.05.2011, 20.07.2011 and 20.09.2011. Then he took time
for further cross-examination. Thereafter, she also died and
their daughter has entered into the witness box as PW-3 and
one more witness was examined as PW-4 on behalf of
plaintiffs and both were fully cross-examined.
30. As stated earlier, for one reason or other, the
evidence of PWs.1 and 2 were not concluded. Hence as per
the Memo filed by the learned counsel for defendants No.1
and 3, my predecessor-in-office passed an order on
13.12.2016 and thereby their evidence has been discarded.
The evidence given by PW-3 in the course of her cross-
33
O.S.No.4226/1993
c/w O.S.No.16270/1999
examination makes it very clear that, as on the date of Sale
Agreement she was 17 years old, but she gathering
information from her parents and accordingly, she gave
evidence before the court. On perusal of her evidence, there
is no reason to disbelieve her oral testimony. The evidence
given by her is in accordance with the case set up by the
original plaintiff. In her cross-examination dated 18.11.2017, it
was suggested to her that, in Ex.P.92, the defendant No.2 has
denied the execution of any document in favour of defendant
No.1 with respect to suit schedule property. She admitted the
said suggestion. In the light of said suggestion, to come to the
right conclusion, I have carefully gone through the contents of
Ex.P.92. Ex.P.92 is the Reply Notice issued by defendant
No.2 in the month of February, 1991. The contents of Ex.P.92
makes it clear that, responding to the legal notice issued by
the plaintiff, the defendant No.2 issued said reply, wherein
she categorically stated that she executed a General Power
of Attorney in favour of defendant No.1 and also executed
Affidavit in her favour stating that, she is ready to execute the
Sale Deed, either in favour of defendant No.1 or her nominee.
Thereafter, on 28.09.1990, the defendant No.1 came to her
along with defendant No.3 and stated that due to her old age,
she is not intending to get the Sale Deed in her name and
thereby requested the defendant No.2 to execute Sale Deed
in favour of her daughter. Hence Sale Deed in favour of
defendant No.3 came to be executed on 27.09.1990. Further,
she pleaded ignorance about the transaction that had taken
34
O.S.No.4226/1993
c/w O.S.No.16270/1999
place between the plaintiff and defendant No.1. It is always
said that, man may tell lie, but circumstances may not. The
said principle is squarely applicable to the case in hand.
Whatever may be the admission made by PW-3 in the course
of her cross-examination, as Ex.P.92 itself is before the court,
the court has to rely upon the contents of said notice.
31. One more thing for consideration is that, the
advocate who issued said notice in favour of defendant No.2
was summoned as a witness on behalf of plaintiff herein in
the aforesaid HRC proceedings and he categorically deposed
before the court that, as per instructions of defendant No.2,
said reply notice was issued. All these facts are clearly
forthcoming in the order passed in HRC.No.1959/1991,
marked at Ex.P.96.
32. It is relevant to mention that, the defendants No.1
and 3 have filed the common written statement. As such, it is
clear that, both are sailing in the same boat and there is
consensus between them. Whatever the steps taken by one
is acceptable to the other. As stated earlier, the contents of
Sale Agreement marked at Ex.P.1 is supported by the
Receipts issued by defendant No.1 through defendant
No.1(b). Ex.P.94 is the certified copy of judgment in
O.S.No.1342/1991. The said suit was instituted by the plaintiff
herein against defendants No.1(b) and defendants No.2 and 3
herein for the relief of permanent injunction and said suit
came to be decreed. Both defendant No.1(b) and defendant
35
O.S.No.4226/1993
c/w O.S.No.16270/1999
No.3 were represented by common advocate in the said suit.
It also makes clear that, there is consensus between them.
Even though, the defendant No.1(b) is arrayed as party to this
suit, after death of his mother, he did not take any trouble to
enter into the witness box to give evidence on his own. As it
was the specific case of plaintiff that, the payment was made
to defendant No.1 through defendant No.1(b), there was no
impediment to him to enter into the witness box and to deny
the same. Since there are documentary evidence with plaintiff
to show that, said payments have been made to defendant
No.1 through defendant No.1(b), he did not take any risk to
enter into the witness box. It also probabalises that, the entire
sale consideration was passed in favour of defendant No.1.
33. In this suit, the defendant No.2 appeared through
her counsel, but not selected to file any written statement. Her
gross silence make it clear that, she has denial to the
averments made in the plaint. Further the contents of her
reply notice makes it very clear that, at the relevant point of
time, there was hurdle/legal impediment to execute the Sale
Deed in respect of the suit schedule property and therefore,
she executed the aforesaid documents in favour of defendant
No.1, authorising her to do whatever the acts or things, she
intended to do. Even if the consideration amount was not
received by defendant No.2, she may not kept quite for all
these days. That itself probabalises that, after receiving the
consideration amount, she conveyed her right, title and
interest in favour of defendant No.1 and thereafter, the
36
O.S.No.4226/1993
c/w O.S.No.16270/1999
defendant No.1 received substantial sum of money from the
plaintiff and executed the aforesaid documents in his favour
and permitted him to dug the borewell and to construct the
multi-storied building. As stated earlier, the case of the plaintiff
is supported by sufficient oral and documentary evidence On
the other hand, the defendant No.3 not at all entered into the
witness box and the evidence given by DW-1 makes it very
clear that, the defendant No.3 is not having any issue and she
is her foster daughter. But while evaluating the evidence given
by her in the course of cross-examination makes it clear that,
except bald denial, nothing worth is forthcoming to show that,
the defendant No.3 has acquired valid right, title and interest
over the suit schedule property.
34. It is not in dispute that, the plaintiff belongs to
Christian community. The colour photographs and Invitation in
respect of House Warming Ceremony produced by the
plaintiff makes it very clear that, there is a prayer hall in the
said property, wherein people belongs to Christian community
used to offer prayer. Even if, the said construction was made
by defendant No.3 and she acquired right over the suit
schedule property, she being a Hindu, there was no occasion
to her to install prayer room, which is exclusively meant for
the Christian.
35. It is also relevant to mention that, according to
defendant No.3, the defendant No.2 herein executed the
Agreement in her favour way back in the year 1983. Even if,
37
O.S.No.4226/1993
c/w O.S.No.16270/1999
there is an Agreement in her favour, there was no impediment
to her to produce it before this court. On persual of order
passed in HRC proceedings, in the said matter she has
produced the alleged Agreement, said to be executed by
defendant No.2. Since this is a comprehensive suit and this
court is the fact finding court, it is obligatory on her part to
produce the said document before the court. But for the
reasons best known to defendant No.3, she did not take any
trouble to place it before the court. It seems that, as alleged
Agreement was created by her to suit her convenience, same
has not been placed before this court. In the course of cross-
examination, DW-1 deposed that, as on the date of Sale
Deed, nothing was paid to defendant No.2. That itself shows
that, at the instance of defendant No.1, the defendant No.2
was forced to execute the Sale Deed in the name of
defendant No.3. Since the defendant No.2 was not aware
about the transaction between the plaintiff and defendant
No.1, believing the words of defendant No.1, she went to the
Office of Sub-Registrar and executed the said Sale Deed. The
moot point before the court is that, whether the defendant
No.3 acquired any title under the said Sale Deed. But the
available evidence makes it clear that, both mother and
daughter with sole intention to defraud the plaintiff
clandestinely got the Sale Deed in the name of daughter.
36. Looking to the documents relied by the plaintiff, it is
very clear that, the possession was delivered to him and
allowed him to dug a borewell in the suit schedule property
38
O.S.No.4226/1993
c/w O.S.No.16270/1999
and to put up multi-storied building therein. Hence it is clear
that, by virtue of documents in his name, he performed certain
acts and things as contemplated under Section 53A of the
Transfer of Property Act. At this stage, I have gone through
the decision relied by learned counsel for defendant No.3 in
the case of Smt.Padmini Raghavan Vs.
Mr.H.A.Sonnappa, since dead by his LRs and others,
reported in ILR 2014 Kar 233. In para No.83 of the said
decision, the Division Bench of our Hon'ble High Court held
as under:
" When the Transfer of Property Act was
enacted, Section 53-A did not find place in it. In
the absence of Section 53-A, there arose
difference of opinion between various courts in
India as regards the application of English
doctrine of part performance of contract as it was
then prevailing in England. Since there was a
difference of opinion on question of the
application of English equitable doctrine of part
performance in various courts of India, the Govt.
of India resolved to set up a Special Committee
for making recommendations amongst others
whether the British equitable doctrine of part
performance be extended in India also. The
Special Committee was of the view that an
illiterate or ignorant buyer who had partly
performed his part of contract required statutory
protection. The Committee was of the further
view that where a transferee in good faith that
lawful instrument i.e. a written contract would be
executed by the transferor takes possession over
the property, the equity demanded that the
transferee should not be treated as trespasser by
the transferor and subsequently evict him
through process of law in the absence of lawful
transfer instrument. The Special Committee also
39
O.S.No.4226/1993
c/w O.S.No.16270/1999
considered the question whether protection
under the proposed Sectifon 53-A to a transferee
would also be available even if the period of
limitation for bringing an action for specific
performance of an agreement to sell has expired.
On the said question, the Committee was of the
view that even after expiry of period of limitation,
the relationship between the transferor and
transferee remains the same as it was within the
period of limitation and, therefore, the
possession over the property taken in part
performance of an agreement is required to be
protected even if the period of limitation for
bringing an action for specific performance has
expired.
37. In my considered view, the findings given in the said
decision is squarely applicable to the case on hand. This being the
state of affair, looking from any angle, no reasons to disbelieve
voluminous documents relied by the plaintiff. On the other hand, there
are sufficient evidence before the court to hold that, the Sale Deed
relied by defendant No.3 was an after thought, it was created with sole
intention to defraud the plaintiff. With these observations, Issues
No.1 to 3, 5 & 6 in O.S.No.4226/1993 are answered in the
affirmative, Issue No.4 in the negative and Issues No.1 to 3 in
O.S.No.16270/1999 in the negative.
38. Issue No.7 in O.S.No.4226/1993 and Issues No.4
and 5 in O.S.No.16270/1999:- While answering
aforementioned issues, this court has come to the conclusion
that, by virtue of Sale Agreement marked at Ex.P.1 and other
voluminous documents, the possession of the property was
delivered to the plaintiff long back and he exercised his right over
40
O.S.No.4226/1993
c/w O.S.No.16270/1999
the suit schedule property by constructing the full fledged house
and gave several tenements on rent to his tenants. Such being
the case, the plaintiff in O.S.No.4226/1993 is entitled for the relief
of specific performance of contract and uncertainty about title
shall not be continued. On the contrary, the plaintiff in
O.S.No.16270/1999 has miserably failed to prove her alleged title
over the suit schedule property. As such, she is not entitled for
any relief. Accordingly, Issue No.5 has no relevance. With these
observations, Issue No.7 in O.S.No.4226/1993 is answered in the
affirmative and Issue No.4 in O.S.No.16270/1999 in negative and
Issue No.5 as per findings.
39. Issue No.8 in O.S.No.4226/1993 and Issues No.6
in O.S.No.16270/1999:- In view of the above discussions, I
proceed to pass the following:-
ORDER
The suit of the plaintiff in O.S.No.4226/1993 is decreed as under:
The defendants are hereby directed to execute the Regular Sale Deed in favour of the plaintiff No.1(c) to 1(f) followed by its registration with respect to with respect to the suit schedule property within two months from the date of this order.
In default, the plaintiff No.1(c) to 1(f) are at liberty to get the Sale Deed in their favour through the process of the court.41
O.S.No.4226/1993 c/w O.S.No.16270/1999 Consequently, the suit in O.S.No.16270/1999 for the relief of declaration of title and possession is hereby dismissed.
Parties are directed to bear their own cost. Draw decree accordingly.
Keep the original judgment in O.S.No.4226/1993 and copy of the same in O.S.No.16270/1999.
(Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 19th day of September, 2022) ( SANTHOSHKUMAR SHETTY N.) XI Addl. City Civil & Sessions Judge, Bengaluru City.
ANNEXURE List of witnesses examined for plaintiff in O.S.No.4226/1993:-
PW-1 : Mr.Robert Francis @ B.Francis PW-2 : Mrs.Pamela Jennifer Devaney PW-3 : Mrs.Candida Arlene D'Souza PW-4 : Mr.H.T.Yellappa List of documents exhibited for plaintiff in O.S.No.4226/1993:-
Ex.P.1: Certified copy of Agreement to Sell dated 16.01.1988 Ex.P.1(a): Signature of deceased plaintiff Ex.P.1(b): Signature of PW-4 Ex.P.2: Receipt executed by V.Mohan 42 O.S.No.4226/1993 c/w O.S.No.16270/1999 Ex.P.3: General Power of Attorney Ex.P.4: Affidavit Ex.P.5: General Power of Attorney Ex.P.6 & 7: Approved Plans Ex.P.8 to 26: 19 Receipts Ex.P.27: House Warming Invitation Card Ex.P.28 to 35: Photographs Ex.P.28(a) to 35(a): Negatives Ex.P.36 to 40: Rental Agreements Ex.P.41 to 73: Rent Receipts Ex.P.74: Office Memorandum of KEB dated 21.05.1993 Ex.P.75 to 90: Electricity Bills & Receipts Ex.P.91: Copy of Legal Notice dated 28.01.1991 Ex.P.92: Reply Notice dated 27.02.1991 Ex.P.93 Copy of Legal Notice dated 26.04.1993 Ex.P.94 & 94(a): Certified copy of Judgment & Decree in O.S.No.1342/1991 Ex.P.95: Certified copy of Written Statement in O.S.No.1342/1991 Ex.P.96: Certified copy of Orders on I.A.No.1 passed in HRC No.1959/1991 Ex.P.97: Tsunami Rehabilitation Card Ex.P.98: Letter written to Hon'ble Chief Minister, Tamil Nadu dated 18.05.2005 Ex.P.98(a): Receipt for Certificate of Posting Ex.P.99 Endorsement issued by Velankani Panchayath Office Ex.P.100 to 104: Photographs Ex.P.100(a) to Negatives 104(a):
Ex.P.105 to 107: Rent Agreements 43 O.S.No.4226/1993 c/w O.S.No.16270/1999 Ex.P.108 & 109: Rent Receipts Ex.P.110: ADAMS Receipt dated 25.07.1988 Ex.P.111: Certified copy of Sale Deed dated 27.09.1990 Ex.P.112: House Warming Invitation Card Ex.P.113 to 115: Photographs Ex.P.113(a) to Negatives 115(a):
Ex.P.116: Copy of Legal Notice dated 28.01.1991 Ex.P.116(a) to (d): Postal Acknowledgements Ex.P.117: Copy Reply Notice dated 27.02.1991 Ex.P.118: Copy of Legal Notice dated 26.04.1993 Ex.P.118(a): Postal Acknowledgement List of witnesses examined for defendants O.S.No.4226/1993:-
DW-1: Mrs.Jamuna List of documents exhibited for defendants in O.S.No.10297/2005:
Ex.D.1: Special Power of Attorney Ex.D.2: Original Sanction Plan Ex.D.3: Original Sale Deed dated 27.09.1990 Ex.D.4: Katha Certificate Ex.D.5: Katha Extract Ex.D.6: Tax Paid Receipt Ex.D.7 & 8: 2 Encumbrance Certificates Ex.D.9 to 12: Electricity Bills
XI ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
44 O.S.No.4226/1993 c/w O.S.No.16270/1999