Bangalore District Court
Sri.H.Srinivas vs Sri.Puttavenkatasubbaiah on 26 September, 2018
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 26th day of September, 2018.
O.S.No.6226/2009
C/w
O.S.No.5477/2010
IN O.S.No.6226/2009:
Plaintiffs:- 1. Sri.H.Srinivas,
Aged about 54 years,
S/o.late Honnappa,
Residing at No.215,
Sollapuradamma Temple
Main Road, Sunkadakatte,
Vishwaneedam Post,
Bengaluru-560 091.
2. Smt.Latha.S.,
Aged about 31 years,
D/o.H.Srinivas,
Residing at No.215,
Sollapuradamma Temple
Main Road, Sunkadakatte,
Vishwaneedam Post,
Bengaluru -560 091.
(By Kumar & Kumar Advocates)
v.
Defendants:- 1. Sri.Puttavenkatasubbaiah,
Aged about 58 years,
S/o.Puttavenkataramaiah,
R/at No.62, Out House,
Middle School Road,
V.V.Puram,
Bengaluru -560 004.
Judgement
2
O.S.No.6226/2009
C/w
O.S.No.5477/2010
2. Smt.Puttalakshmi Devi,
Aged about 59 years
W/o.Sri.Puttavenkatasubbaiah,
R/at C/o.Govardhan Kumar.P,
R/at No.62, Out House,
Middle School Road,
V.V.Puram,
Bengaluru-560 004.
(By Adv.S.R.Sreenivasamurthy)
Date of institution of the suit : 25.09.2009
Nature of the suit : Declaration
Date of commencement of : 29.06.2011
Recording of the evidence
Date on which the Judgment : 26.09.2018
was pronounced
Total Duration : Years Months Days
09 00 01
IN O.S.No.5477/2010:
Plaintiff:- Smt.Puttalakshmi Devi,
Aged about 52 years
W/o.Sri.Puttavenkata Subbaiah,
R/at C/o.Govardhan Kumar.P,
No.2876, 2nd 'B' Main, 16th Cross,
K.R.Road, BSK II Stage,
Bangalore-560 070.
(By Adv.S.R.Sreenivasamurthy)
v.
Defendant:- Sri.H.Srinivas,
Aged about 55 years,
S/o.Late Honnappa,
Residing at No.215,
Sollapuradamma Temple
Judgement
3
O.S.No.6226/2009
C/w
O.S.No.5477/2010
Main Road, Sunkadakatte,
Vishwaneedam Post,
Bangalore-560 091.
(By Kumar & Kumar Advocates)
Date of institution of the suit : 06.08.2010
Nature of the suit : Permanent Injunction
Date of commencement of : 07.12.2011
Recording of the evidence
Date on which the Judgment : 26.09.2018
was pronounced
Total Duration : Years Months Days
08 01 20
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
COMMON JUDGEMENT
OS.No.6226/2009 is filed by H.Srinivas & Smt.Latha.S
against Sri.Puttavenkatasubbaiah and Smt.Puttalakshmi Devi, for
declaration of title, declaration that Sale deed dated 04.07.1984
and Gift deed dated 20.11.2009 are not binding on the plaintiffs,
possession and costs.
OS.No.5477/2010 is filed by Smt.Puttalakshmi Devi
against Sri. H.Srinivas, for permanent injunction and costs.
Judgement
4
O.S.No.6226/2009
C/w
O.S.No.5477/2010
2. The plaintiffs' case in OS.No.6226/2009 in brief as
under:-
Plaintiff No.1's grandfather namely, Hanumanthappa had
purchased Sy.No.113/1-B of Laggere Village, measuring 5 acres
31 guntas in the name of plaintiff No.1 vide., registered Sale
Deed dated 27.09.1962. Plaintiff No.1 had formed revenue
layout in Sy.No.113/1-B and sold sites to third parties and had
retained suit schedule property i.e., site no.35 formed in the said
survey. Plaintiff No.1 is the absolute owner and in possession of
suit schedule property. The plaintiff no.1 and his mother namely,
Pillamma had executed a General Power of Attorney dated
27.04.1983 in favour of The Malleswaram Tailoring Co-operative
Society to do various acts. The plaintiff no.1 and his mother have
not executed any documents in favour of The Mysore Road
Industrial Employees House Building Co-operative Society. The
plaintiffs have denied defendants' contention that The
Malleswaram Tailoring Co-operative Society has executed a
General Power of Attorney dated 16.06.1983 in favour of The
Mysore Road Industrial Employees House Building Co-operative
Society and said General Power of Attorney is executed by The
Malleswaram Tailoring Co-operative Society as owner of the
schedule property. Said General Power of Attorney is executed
without reference to the original owners i.e., plaintiff no.1 and
Judgement
5
O.S.No.6226/2009
C/w
O.S.No.5477/2010
Pillamma. Hence, said General Power of Attorney is non-est in the
eye of law. The plaintiffs have also denied defendants' contention
that The Mysore Road Industrial Employees House Building Co-
operative Society has executed Sale Deed in favour of defendant
no.1 in respect of suit schedule property and said Sale Deed is
registered in the office of the Sub-Registrar, Madras North,
Madras. The defendant no.1 has not derived any title and interest
over the suit schedule property. The said Sale Deed is not valid
under law and the said Sale Deed is not binding on the plaintiffs.
The Gift Deed executed by defendant no.1 in favour of defendant
no.2 in respect of suit schedule property is null and void and not
binding on the plaintiffs. Subsequently, plaintiff no.1 has
executed Gift Deed in respect of suit schedule property in favour
of plaintiff no.2 and plaintiff no.2 has succeeded to the suit
schedule property and plaintiff no.2 is the absolute owner of the
suit schedule property. The defendants are utter strangers to the
suit schedule property. On 24.09.2009 at 4:00 p.m. defendant
no.1 tried to interfere with plaintiffs' possession. The plaintiffs
approached the concerned Police Station but, the police directed
the plaintiffs to approach competent Civil Court for appropriate
relief. The plaintiffs are the absolute owners and in possession of
the suit schedule property. Based on the illegal documents, the
defendants contend that they are in possession of the suit
Judgement
6
O.S.No.6226/2009
C/w
O.S.No.5477/2010
property, in the event, this court comes to the conclusion that the
plaintiffs are not in possession of the suit schedule property, the
defendants may be directed to hand over possession to the
plaintiffs. Hence, the plaintiffs have filed the above suit.
3. In response to the suit summons, defendant nos.1 and
2 in OS.No.6226/2009 have appeared before the court through
their counsel. Defendant no.1 has filed written statement and
defendant no.2 has adopted the same. The defendants have
denied plaintiffs' title and possession over the suit schedule
property. The Mysore Road Industrial Employees House Building
Co-operative Society had purchased Sy.No.113 of Laggere Village
and formed a layout and allotted sites to its members.
Defendant no.1 is a member of the Society and the suit schedule
property was allotted to him and said Society has executed Sale
Deed in favour of defendant No.1 on 04.07.1984 and said Sale
Deed is registered in the office of the District Sub-Registrar,
Madras North. Again defendant No.1 submitted the Sale Deed to
the jurisdictional Sub-Registrar's Office, the District Registrar,
Rajajinagar and registered the above document in the office of
the Sub-Registrar, Laggere, Bengaluru. Defendant No.1 is the
absolute owner of the suit schedule property and he has
purchased the suit schedule property bearing site no.35 from The
Mysore Road Industrial Employees House Building Co-operative
Judgement
7
O.S.No.6226/2009
C/w
O.S.No.5477/2010
Society. The defendant no.1 has executed Gift Deed in favour of
defendant no.2 in respect of suit schedule property and
defendant no.2 is the absolute owner and in possession of the
suit property. The khatha of the suit schedule property is
mutated in the name of defendant. The defendant has paid up-to
date taxes to the concerned authorities. There is no cause of
action to file the above suit. Hence, prayed that plaintiffs' suit is
OS.No.6226/2009 may be dismissed with costs.
4. The plaintiff's case in OS.No.5477/2010 in brief as
under:-
The plaintiff is the absolute owner and in possession of suit
schedule property. The Mysore Road Industrial Employees House
Building Co-operative Society had purchased Sy.No.113 of
Laggere Village and formed layout in the said land and allotted
sites to its members. Plaintiff's husband was a member of the
said Society and the suit schedule property was allotted to him.
Said Society has executed and registered Sale Deed in favour of
plaintiff's husband in the Office of the District Sub-Registrar,
Madras North. Again plaintiff's husband submitted the Sale Deed
to the jurisdictional Sub-Registrar's Office, the District Registrar,
Rajajinagar and registered the above document in the office of
the Sub-Registrar, Laggere, Bengaluru. Plaintiff's husband has
executed Gift Deed in favour of plaintiff in respect of suit
Judgement
8
O.S.No.6226/2009
C/w
O.S.No.5477/2010
schedule property and plaintiff is the absolute owner and in
possession of the suit property. The plaintiff has constructed
compound wall to the suit schedule property. On 19.07.2010,
the defendant without any right or interest over the suit property,
tried to interfere with plaintiff's possession and trespass over the
suit property. The plaintiff was able to resist the illegal acts of
the defendant. In this regard plaintiff has lodged complaint
against the defendant before the concerned police station.
Hence, the plaintiff has filed the above suit for permanent
injunction against the defendant.
5. In response to the suit summons, defendant in
OS.No.5477/2010 has appeared before the court through his
counsel. The defendant has denied plaintiff's title and possession
over the suit schedule property. The defendant has denied
construction of compound wall by the plaintiff. Defendant's
grandfather namely, Hanumanthappa had purchased
Sy.No.113/1-B of Laggere Village, measuring 5 acres 31 guntas
in the name of the defendant vide., registered Sale Deed dated
27.09.1962. Since then the defendant is in possession and
enjoyment of the said property. The defendant had formed
revenue layout in the said land and sold many sites and retained
the suit schedule property. The defendant is the absolute owner
and in possession of the suit property. On 24.09.2009, plaintiff's
Judgement
9
O.S.No.6226/2009
C/w
O.S.No.5477/2010
husband and his supporters tried to interfere with defendant's
possession hence, the defendant has filed a suit in
OS.No.6226/2009 against plaintiff herein and her husband.
There is no cause of action to file the above suit. Hence, prayed
that plaintiff's suit in OS.No.5477/2010 may be dismissed with
costs.
6. On the basis of above pleadings of both the parties,
below mentioned issues arise for consideration in the respective
suits as follows:-
ISSUES IN O.S.No.6226/2009
1. Whether the plaintiff proves that he was in lawful
possession of the suit schedule property as on the
date of the suit?
2. Whether the plaintiff proves the alleged
interference by the defendant?
3. Whether plaintiff is entitled for the relief of
permanent injunction?
4. What order or decree?
ADDITIONAL ISSUES DATED 19.09.2013
1. Whether plaintiff proves that he is the owner of suit
schedule property?
2. Whether plaintiff proves that Sale Deed dated
04.07.1984 in document no.1836/84 before Sub-
Registrar, Madras Marg does not bind on the
plaintiff?
Judgement
10
O.S.No.6226/2009
C/w
O.S.No.5477/2010
3. Whether plaintiff proves that Gift Deed executed by
defendant in favour of his wife Puttalakshmidevi
dated 20.11.2009 is not binding on the plaintiff?
ADDITIONAL ISSUES DATED 25.11.2016
4. Whether the plaintiff is entitled to get declaration
as sought?
5. Whether the plaintiff is entitled to get alternatively
the relief of possession?
ISSUES IN O.S.No.5477/2010
1. Whether the plaintiff proves that she is in lawful
possession of the suit schedule property as on the
date of suit?
2. Does the plaintiff prove that there is interference
by the defendant to her lawful possession over the
suit property?
3. Does the plaintiff prove that she is entitled for the
relief of permanent injunction against the
defendant?
4. What order or decree?
7. To prove the case, plaintiffs in O.S.No.6226/2009
examined themselves as PWs.1 and 2 and got marked Ex.P1 to
P32. Defendant no.1 in O.S.No.6226/2009 examined himself as
DW-1 and got marked Ex.D1 to D32. Plaintiff in
OS.No.5477/2010 examined herself as PW-1 and got marked
Ex.P1 to P27. GPA Holder of defendant in OS.No.5477/2010
examined as DW-1 and got marked Ex.D1 to D23.
Judgement
11
O.S.No.6226/2009
C/w
O.S.No.5477/2010
8. . Thereafter, both suits are clubbed for common
decision. Arguments Heard. The learned counsel for the plaintiffs
in OS.No.6226/2009 has relied upon the following citations
reported in:
1. (2009) 7 Supreme Court Cases 363, in the
case of Suraj Lamp and Industries Private
Limited through Director v. State of
Haryana and another.
2. AIR 2012 SUPREME COURT 206, in the case
of Suraj Lamp and Industries Pvt. Ltd. v.
State of Haryana and another.
3. [MANU/SC/0751/2012]/[(2012)12SCC133,
in the case of V.Chandrasekaran and others v.
The administrative Officer & others.
4. Order passed by the Hon'ble High Court of
Karnataka in W.P.No.47991/2017 (LB-RES)
in the case of Smt.N.Premakumari v. The
Deputy Commissioner & another.
5. [MANU/WB/0103/1970]/ [AIR1970Cal513],
in the case of Life Insurance Corporation of
India v. United Bank of India Ltd. and
another.
6. [MANU/SC/0528/1995]/[(1955)1SCC 198]
in the case of Ramti Devi v. Union of India
(UOI).
7. MANU/KA/0011/2011 in the case of The
Executive Officer Karnataka State Hai
Committee v. Sri Syed Mohammed since dead
by his LRs and others.
Judgement
12
O.S.No.6226/2009
C/w
O.S.No.5477/2010
8. AIR 2008 SC 2033, in the case of Anathula
Sudhakar v. P.Buchi Redd (Dead) by L.Rs.
and others.
The learned counsel for the defendants in OS.No.6226/2009
has relied upon the following citations reported in:
1. 2016 (1) Kar.L.J. 619, in the case of Ajay
R.Gowda v. The Bangalore Development
Authority, Bangalore.
2. 2016 (5) KCCR 1233, in the case of Annappa
v. Laxmi Devi Devar Temple and
Nulichandayya Devasthan Committee and
others.
3. AIR 2014 SUPREME COURT 937, in the case
of Union of India and others v. Vasavi Co-
op. Housing Society Ltd., and others.
4. 2016 (4) KCCR 2955, in the case of
Sri.B.S.Prakash v. Sri.T.Gnaneshwar Rao
and others.
5. AIR 1994 KARNATAKA 133, in the case of
Corporation Bank, Bangalore v. Lalitha
H.Holla and others.
6. AIR 1972 ALLAHABAD 219, in the case of
Smt.Kulsumun-nisa v. Smt.Ahmadi Begum
and other.
7. AIR 1950 ALLAHABAD 524, in the case of
Wali Mohammad Chaudhari and others v.
Jamal Udding Chaudhar.
9. My findings on the above said issues are as follows:-
Judgement
13
O.S.No.6226/2009
C/w
O.S.No.5477/2010
IN O.S.No.6226/2009:-
Issue No.1:- In the Negative.
Issue No.2:- In the Negative.
Issue No.3:- In the Negative.
Addl.Issue No.1:- In the Negative.
Addl.Issue No.2:- In the Negative.
Addl.Issue No.3:- In the Negative.
Addl.Issue No.4:- In the Negative.
Addl.Issue No.5:- In the Negative.
Issue No.4:- As per final order.
IN O.S.No.5477/2010:-
Issue No.1:- In the Affirmative.
Issue No.2:- In the Affirmative.
Issue No.3:- In the Affirmative.
Issue No.4:- As per final order
for the following:-
REASONS
10. Issue Nos.1 to 3, Additional Issue Nos.1 to 5 in
OS.No.6226/2009 and Issue Nos.1 to 3 in
OS.No.5477/2010:- These issues are taken up together for
consideration to avoid repetition of facts, evidence and
convenience. For the sake of convenience the rank of the parties
assigned in OS.No.6226/2009 are referred for discussion.
11. Plaintiff No.1 has contended that he is the absolute
owner of the suit schedule property and he has formed a layout
in Sy.No.113/1-B and sold many sites and retained the suit
Judgement
14
O.S.No.6226/2009
C/w
O.S.No.5477/2010
schedule property and gifted suit schedule property to his
daughter i.e., plaintiff No.2 and plaintiff No.2 is the absolute
owner and in possession of the suit schedule property. Per
contra, defendant no.1 has contended that Sy.No.113 was
purchased by The Mysore Road Industrial Employees House
Building Co-operative Society and said Society had formed a
layout and allotted suit schedule property to defendant no.1 and
defendant no.1 has purchased the suit schedule property for
valuable consideration vide., registered Sale Deed dated
04.07.1984. Defendant no.1 has constructed compound wall to
the suit schedule property and has gifted the suit schedule
property to his wife i.e., defendant no.2 and defendant no.2 is
the absolute owner and in possession of the same.
12. PW-1 in his evidence has stated that Sy.No.113 of
Laggere Village, measuring 5 acres 31 guntas was purchased by
plaintiff no.1's grandfather in the name of plaintiff no.1. In
support of the same, the plaintiffs have produced certified copy of
Sale Deed dated 27.09.1962 at Ex.P4 and Mutation Register
Extract bearing No.164-/80-81 at Ex.P5 before this court. Ex.P4
and P5 are marked without any objection. Ex.P4 and P5 bear the
seal and signature of competent authority hence, Ex.P4 and P5
are admissible in evidence. From the recitals of Ex.P4, it goes to
show that plaintiff no.1's grandfather had purchased Sy.No.113,
Judgement
15
O.S.No.6226/2009
C/w
O.S.No.5477/2010
measuring 5 acres 14 guntas, in the plaintiff's name and from
Ex.P5 i.e., Mutation Register Extract it goes to show that
subsequent to purchase khatha was mutated in the name of
plaintiff no.1. It is pertinent to note that, DW-1 admits that The
Mysore Road Industrial Employees House Building Co-operative
Society had purchased Sy.No.113 from plaintiff no.1 and his
mother Pillamma. From the above evidence of DW-1, it clearly
goes to show that initially Sy.No.113 belonged to plaintiff no.1.
13. Plaintiff no.1 contends that he had formed a layout in
Sy.No.113 of Laggere Village. The defendants contend that The
Mysore Road Industrial Employees House Building Co-operative
Society had formed layout in Sy.No.113. Per contra, DW-1 in his
cross-examination admits that plaintiff no.1 had formed sites in
Sy.No.113 of Laggere Village. Therefore, contention of the
plaintiffs that plaintiff no.1 had formed sites in Sy.No.113 of
Laggere Village has to be accepted.
14. It is not in dispute that suit schedule property i.e., site
No.35 is situated in Sy.No.113 of Laggere Village. Plaintiffs
contended that plaintiff no.1 is the absolute owner and in
possession of the suit schedule property. Later, plaintiff no.1
gifted the suit schedule property to plaintiff no.2 and plaintiff
no.2 is the owner of the suit schedule property. Per contra, the
Judgement
16
O.S.No.6226/2009
C/w
O.S.No.5477/2010
defendants contend that Sy.No.113 was purchased by The
Mysore Road Industrial Employees House Building Co-operative
Society and formed a layout and allotted sites to its members and
suit schedule property was allotted to defendant no.1 and Sale
Deed was executed in favour of defendant no.1 and khatha was
mutated in the name of defendant no.1 and later defendant no.1
gifted the suit schedule property to his wife i.e., defendant no.2
and executed Gift Deed in her favour. Therefore, defendant no.2
is the absolute owner. Advocate for the plaintiffs argued that
plaintiff no.1 and his mother Pillamma have executed GPA in
favour of The Malleswaram Tailoring Co-operative Society and
plaintiff no.1 and his mother have not executed any document in
favour of The Mysore Road Industrial Employees House Building
Co-operative Society and GPA executed in favour of The Mysore
Road Industrial Employees House Building Co-operative Society is
not a valid document and Sale Deed executed by The Mysore
Road Industrial Employees House Building Co-operative Society in
favour of defendant no.1 is not valid and no title is passed on to
defendant no.1. Advocate for defendants argued that plaintiff
no.1 and his mother have alienated Sy.No.113 and executed GPA
in favour of The Malleswaram Tailoring Co-operative Society and
said The Malleswaram Tailoring Co-operative Society has
executed GPA in favour of The Mysore Road Industrial Employees
Judgement
17
O.S.No.6226/2009
C/w
O.S.No.5477/2010
House Building Co-operative Society and said The Mysore Road
Industrial Employees House Building Co-operative Society has
allotted the suit schedule property to defendant no.1 and
executed registered Sale Deed in favour of defendant no.1 and
defendant no.1 has executed Gift Deed in favour of defendant
no.2 and defendant no.2 is the absolute owner of the suit
schedule property. Advocate for defendants argued that title has
passed on from plaintiff no.1 and his mother in favour of The
Malleswaram Tailoring Co-operative Society and in turn, to The
Mysore Road Industrial Employees House Building Co-operative
Society and to defendants. It is pertinent to note that, plaintiffs
in their pleadings and evidence admit execution of GPA dated
27.04.1983, in favour of The Malleswaram Tailoring Co-operative
Society and said document is marked as Ex.D1 (in
OS.No.6226/2009). From the recitals of Ex.D1, it clearly goes to
show that plaintiff no.1 and his mother have executed GPA in
favour of the said Society. Further, from Ex.D1 i.e., GPA, it
reveals that plaintiff no.1 and his mother have authorized said
Society to sell, exchange or dispose of the said property and to
execute necessary deeds and register the same before the Sub-
Registrar Office. Further from Ex.D1 i.e., GPA, it reveals that
plaintiff no.1 and his mother have received Rs.75,000/- and all
other dues from the Secretary, The Malleswaram Tailoring Co-
Judgement
18
O.S.No.6226/2009
C/w
O.S.No.5477/2010
operative Society. Ex.D1 contains recitals that GPA is an
irrevocable GPA. PW-1 in his cross-examination admits that the
said GPA is executed in respect of the suit schedule property. It
is not the case of the plaintiffs that plaintiff no.1 and his mother
have revoked the said GPA dated 27.04.1983. From the recitals
of Ex.D1, it reveals that said GPA is an irrevocable GPA coupled
with interest. PW-1 in his cross-examination admits that based
on the GPA i.e., Ex.D1 Sale Deed is executed in the name of
defendant no.1 on 04.07.1984. From the above evidence of
PW-1, it clearly goes to show that The Malleswaram Tailoring Co-
operative Society i.e., agent of plaintiff no.1 and his mother has
acted as per the powers entrusted to it and sold the suit schedule
property in favour of The Mysore Road Industrial Employees
House Building Co-operative Society. Subsequently, as per Ex.D3
(in OS.No.6226/2009) The Mysore Road Industrial Employees
House Building Co-operative Society has allotted the suit
schedule property to defendant no.1 and executed registered
Sale Deed in favour of defendant no.1. Therefore, title has
passed on from plaintiff no.1 and his mother to The Malleswaram
Tailoring Co-operative Society and from The Malleswaram
Tailoring Co-operative Society to The Mysore Road Industrial
Employees House Building Co-operative Society and from The
Mysore Road Industrial Employees House Building Co-operative
Judgement
19
O.S.No.6226/2009
C/w
O.S.No.5477/2010
Society to defendant no.1. Ex.D2 i.e., Gift Deed (in
OS.No.6226/2009) reveals that defendant no.1 has gifted the suit
schedule property in favour of defendant no.2 herein. All the
conditions of Gift Deed are complied with as per Ex.D2.
Therefore, title in the suit schedule property has passed on from
defendant no.1 to defendant no.2. Hence, defendant no.2 is
absolute owner of the suit schedule property.
15. Advocate for the plaintiffs argued that through GPA
property cannot be alienated and defendants have not derived
any title over the suit schedule property and relied upon the
decision reported in (2009) 7 Supreme Court Cases 363, in
the case of Suraj Lamp and Industries Private Limited
through Director v. State of Haryana and another. In
(2012) 1 Supreme Court Cases 656, in the case of Suraj
Lamp and Industries Private Limited (2) through Director
v. State of Haryana and another, wherein the lordships have
held as under:-
"A. Transfer of Property Act, 1882 - Ss.54,
55, 53-A, 105, 107, 5 and 8 - Immovable property
- Proper mode of transfer / conveyance of -
General power of attorney sales (GPA sales) or sale
agreement / general power of attorney / will
transfers while testator is alive (SA/GP/living will
transfers) - Legality - Held, immovable property
can be transferred / conveyed only by deed of
Judgement
20
O.S.No.6226/2009
C/w
O.S.No.5477/2010
conveyance (sale deed) duly stamped and
registered as required by law - Explaining the
nature and scope of an agreement for sale, power
of attorney and living will, held, GPA sales or
SA/GPA/living will transfers neither convey any title
nor do they amount to transfer of, or create
interest in, immovable property except to the
limited extent of S.53-A - Observations of Delhi
High Court in Asha M.Jain case, (2001) 94 DLT 841
that attorney sale was a recognized mode of
transaction held, unwarranted and unjustified"
-View taken herein, held, applicable not only
to transfer of freehold property but also to transfer
of leasehold property - Need to put an end to
practice of SA/GPA/Living will transactions,
emphasised.
- However, certain protections granted to
SA/GPA/Living will transactions entered into, prior
to date of present judgment.
- Further held, present judgment will
not affect validity of sale agreements and
powers of attorney executed in genuine
transactions - Illustrations of such genuine
transactions given - Registration Act, 1908 - Ss.
17 and 49 - Consumer Protection Act, 1986,
Ss.2(1)(o) & (g)".
From the above decision, it is clear that above judgment will not
affect validity of sale agreements and powers of attorney
executed in genuine transactions. In the present case, plaintiff
Judgement
21
O.S.No.6226/2009
C/w
O.S.No.5477/2010
no.1 and his mother have received amount and have executed
GPA authorizing their attorney i.e., The Malleswaram Tailoring
Co-operative Society to sell and register documents before Sub-
Registrar. In other words, plaintiff no.1 and his mother have
received sale consideration and have alienated the property
through GPA. Therefore, above argument of plaintiffs' counsel is
not sustainable.
16. Advocate for the plaintiffs argued that The Mysore
Road Industrial Employees House Building Co-operative Society
has not derived any title hence, Sale Deed executed by The
Mysore Road Industrial Employees House Building Co-operative
Society in favour of defendant no.1 is not a valid document. It is
pertinent to note that, as per Ex.D1, plaintiff no.1 and his mother
have received amount and executed GPA in favour of The
Malleswaram Tailoring Co-operative Society to sell, exchange,
surrender, lease use or dispose off the schedule property and for
that purpose to execute surrender, any powers of sale or
otherwise to realise the benefit thereof in such manner as my
attorney shall think proper as a rightful owner of the same. By
exercising the powers conferred under Ex.D1, The Malleswaram
Tailoring Co-operative Society has executed GPA in favour of The
Mysore Road Industrial Employees House Building Co-operative
Society and said Society has executed Sale Deed in favour of
Judgement
22
O.S.No.6226/2009
C/w
O.S.No.5477/2010
defendant no.1. From the above documents it is clear that title
has passed on from plaintiff no.1 and his mother to The
Malleswaram Tailoring Co-operative Society and from The
Malleswaram Tailoring Co-operative Society to The Mysore Road
Industrial Employees House Building Co-operative Society and
from The Mysore Road Industrial Employees House Building Co-
operative Society to defendant no.1. Therefore, the above
argument of plaintiffs' counsel is not sustainable.
17. Advocate for the plaintiffs argued that Ex.D3 i.e., Sale
Deed executed by The Mysore Road Industrial Employees House
Building Co-operative Society in favour of defendant no.1 is
registered in the Office of Sub-Registrar, Madras North therefore,
the said Sale Deed is not valid under law. Advocate for the
defendants argued that as per Section 30 of the Registration Act,
Sale Deed can be registered at Presidency Towns and later Sale
Deed has to be submitted before concerned Sub-Registrar Office
for collection of stamp duty. Therefore, Ex.D3 i.e., Sale Deed is
valid under law. Section 30(2) of the Registration Act reads
as follows:
"Prior to omission sub-Section (2) read as under:-
"(2) The Registrar of a district in which a
Presidency-town is included and the Registrar of
Delhi district may receive and register any
document referred to in Sec.28 without regard to
Judgement
23
O.S.No.6226/2009
C/w
O.S.No.5477/2010
the situation in any part of India of the property to
which the document relates".
From the above provision of law, it is clear that the Registrar of a
district in which Presidency-town is included is empowered to
register the Sale Deed. In the present case, the Sale Deed is
registered before Sub-Registrar, Madras and subsequently, Sale
Deed is presented to the concerned Sub-Registrar, Rajajinagar
and registered before the said Sub-Registrar. Therefore,
contention of plaintiffs' counsel is not sustainable under law.
18. Advocate for plaintiffs argued that plaintiff no.1 and
his mother have executed GPA in favour of The Malleswaram
Tailoring Co-operative Society and said The Malleswaram
Tailoring Co-operative Society cannot sub-delegate the powers
and execute GPA in favour of The Mysore Road Industrial
Employees House Building Co-operative Society. Therefore, GPA
executed in favour of The Mysore Road Industrial Employees
House Building Co-operative Society is not valid. Ex.D1 is the
GPA executed by plaintiff no.1 and his mother in favour of The
Malleswaram Tailoring Co-operative Society. From the recitals of
Ex.D1, it is clear that plaintiff no.1 and his mother have
empowered The Malleswaram Tailoring Co-operative Society to
sell the property and further execute necessary documents to
convey the title in favour of the purchaser and also to register the
Judgement
24
O.S.No.6226/2009
C/w
O.S.No.5477/2010
said deeds before the Sub-Registrar and to do various other acts.
Under Ex.D1 The Malleswaram Tailoring Co-operative Society is
empowered and authorized to sub-delegate the powers.
Therefore, above contention of plaintiffs' counsel is not
sustainable under law.
19. PWs.1 and 2 in their examination-in-chief have stated
plaintiff no.1 has executed Gift Deed to his daughter i.e., Ex.P13
(in OS.No.6226/2009). It is pertinent to note that, as per Ex.D1
plaintiff no.1 had executed GPA in favour of The Malleswaram
Tailoring Co-operative Society and based on the said General
Power of Attorney, Sale Deed is executed in favour of defendant
no.1. The said Sale Deed of defendant no.1 has come into
existence much prior to plaintiff no.2's Gift Deed. Therefore,
plaintiff no.1 had no title over the suit schedule property to gift
the same to his daughter. Therefore, Ex.P13 doesn't convey any
title in favour of plaintiff no.2. Therefore, contention of plaintiff
no.2 that she is the absolute owner of the suit schedule property
falls to ground.
20. The defendants have produced original allotment
letter, Sale Deed and Gift Deed before this court. From the
above said documents it is clear that the defendants have
acquired title in the suit schedule property as contended in the
Judgement
25
O.S.No.6226/2009
C/w
O.S.No.5477/2010
written statement. Therefore, Sale Deed and Gift Deed executed
in favour of the defendants in respect of suit schedule property
are binding on the plaintiffs.
21. PWs.1 and 2 in their examination-in-chief have stated
that plaintiffs are in possession of the suit schedule property. Per
contra, defendants in their evidence have stated that defendant
no.2 is in possession of the suit schedule property and they have
constructed compound wall over the suit schedule property. In
order to prove plaintiffs' possession, the plaintiffs have produced
RTCs, tax paid receipts, khatha and Encumbrance Certificate
before this court. It is pertinent to note that, the tax paid
receipts i.e., Ex.P17 to P32 (in OS.No.6226/2009) produced by
the plaintiffs have come into existence on 19.08.2016,
20.08.2016 and 26.07.2017. The said tax paid receipts have
come into existence during the pendency of the suit. From
Ex.P17 to P32, it goes to show that on 19.08.2016, 20.08.2016
and 26.07.2017 taxes are paid by the plaintiffs for the period
from 2009-10 to 2017-18. Therefore, it can be inferred that tax
paid receipts are obtained only to suit their case. Therefore,
Ex.P17 to P32 cannot be relied upon. The plaintiffs have
produced RTCs at Ex.P1, P6 to P12. PW.2 in her evidence has
categorically stated that her father has formed layout in
Sy.No.113 and sold sites to third parties. Further, PW-1 admits
Judgement
26
O.S.No.6226/2009
C/w
O.S.No.5477/2010
that the defendant is paying taxes to the Corporation. From the
above evidence of PWs.1 and 2 it is clear that the suit schedule
property is not an agricultural land therefore, RTCs produced by
the plaintiffs cannot be relied upon. The plaintiffs have produced
khatha and Encumbrance Certificate at Ex.P14 and P15. Ex.P14
and P15 pertain to 2016-17. Ex.P14 and P15 have come into
existence during the pendency of the above suit hence, it cannot
be relied upon by this court. The plaintiffs have not produced
material evidence before this court to prove their possession over
the suit schedule property. It is pertinent to note that, PW-1 in
his cross-examination admits that Society has issued Possession
Certificate in favour of the defendant in respect of the suit
schedule property and defendant is paying taxes to the
Corporation. Further, PW-1 also admits that khatha of the suit
schedule property is mutated in the name of defendant. Further,
PW-1 also admits that defendant has constructed a compound
wall to the suit schedule property. From the above admissions by
PW-1, it clearly goes to show that defendants are in possession of
the suit schedule property and defendants have constructed
compound wall to the suit schedule property. The defendants
have produced Possession Certificate at Ex.P4, tax paid receipts
at Ex.P8 to P19 and encumbrance certificates at P22 and P23 (in
OS.No.5477/2010). From the said documents, it clearly goes to
Judgement
27
O.S.No.6226/2009
C/w
O.S.No.5477/2010
show that the defendants are in possession of the suit schedule
property and paying taxes to the concerned authorities from time
to time regularly. The above said documents corroborate
defendants' possession over the suit schedule property.
Therefore, contention of the plaintiffs that they are in possession
of the suit schedule property cannot be accepted. The plaintiffs
have failed to prove their possession over the suit schedule
property. On the other hand contention of the defendants that
they are in possession of the suit property has to be accepted.
22. The defendants in their evidence have stated that on
19.07.2010, the plaintiffs attempted to trespass and interfere
with defendants' possession over the suit schedule property. In
support of the same, the defendants have produced copy of the
police complaint at Ex.P25 and P26 and police endorsement at
Ex.P27 (in OS.No.5477/2010). PW-1 in his cross-examination
admits that he went to the suit schedule property and quarrelled
and in this regard, defendant has filed complaint before the
police. In view of the above said admission, Ex.P25, P26 and P27
(in OS.No.5477/2010) can be relied upon by this court. From the
above said documents, it is clear that plaintiffs' interfered with
defendants' possession. Therefore, contention of the defendants
that plaintiffs interfered with defendants' possession has to be
accepted.
Judgement
28
O.S.No.6226/2009
C/w
O.S.No.5477/2010
23. Advocate for the defendants argued that plaintiffs had
knowledge of Sale Deed dated 04.07.1984 therefore, the present
suit is barred by limitation. Initially, O.S. No.6226/2009 was filed
for bare injunction. Subsequently, the plaint was amended and
the plaintiffs have sought the relief of declaration and injunction.
Normally, the amendment relates back to date of institution of
the suit. In the present case amendment is allowed without any
conditions. Therefore, the amendment will come into effect from
the date of filing of the suit. It is pertinent to note that, there is
no pleading by the defendants that suit is barred by limitation.
No evidence is produced by the defendants to show that plaintiffs
had knowledge of the Sale Deed dated 04.07.1984 much prior to
filing of the above suit. Hence, the above argument of
defendants' counsel is not sustainable.
24. The learned counsel for the plaintiffs in
OS.No.6226/2009 has relied upon the following citations
reported in:
1. [MANU/SC/0751/2012]/[(2012)12SCC133,
in the case of V.Chandrasekaran and others v.
The administrative Officer & others.
2. Order passed by the Hon'ble High Court of
Karnataka in W.P.No.47991/2017 (LB-RES)
in the case of Smt.N.Premakumari v. The
Deputy Commissioner & another.
Judgement
29
O.S.No.6226/2009
C/w
O.S.No.5477/2010
3. [MANU/WB/0103/1970]/ [AIR1970Cal513],
in the case of Life Insurance Corporation of
India v. United Bank of India Ltd. and
another.
4. [MANU/SC/0528/1995]/[(1955)1SCC 198]
in the case of Ramti Devi v. Union of India
(UOI).
5. MANU/KA/0011/2011 in the case of The
Executive Officer Karnataka State Hai
Committee v. Sri Syed Mohammed since dead
by his LRs and others.
6. AIR 2008 SC 2033, in the case of Anathula
Sudhakar v. P.Buchi Redd (Dead) by L.Rs.
and others.
The learned counsel for the defendants in OS.No.6226/2009
has relied upon the following citations reported in:
1. 2016 (1) Kar.L.J. 619, in the case of Ajay
R.Gowda v. The Bangalore Development
Authority, Bangalore.
2. 2016 (5) KCCR 1233, in the case of Annappa
v. Laxmi Devi Devar Temple and
Nulichandayya Devasthan Committee and
others.
3. AIR 2014 SUPREME COURT 937, in the case
of Union of India and others v. Vasavi Co-
op. Housing Society Ltd., and others.
4. 2016 (4) KCCR 2955, in the case of
Sri.B.S.Prakash v. Sri.T.Gnaneshwar Rao
and others.
Judgement
30
O.S.No.6226/2009
C/w
O.S.No.5477/2010
5. AIR 1994 KARNATAKA 133, in the case of
Corporation Bank, Bangalore v. Lalitha
H.Holla and others.
6. AIR 1972 ALLAHABAD 219, in the case of
Smt.Kulsumun-nisa v. Smt.Ahmadi Begum
and other.
7. AIR 1950 ALLAHABAD 524, in the case of
Wali Mohammad Chaudhari and others v.
Jamal Udding Chaudhar.
The above said citations relied upon by plaintiffs' counsel and
defendants' counsels are not applicable to facts and
circumstances of the above case. The plaintiffs have failed to
prove their title over the suit schedule property hence, plaintiffs
are not entitle for relief of possession as prayed in their plaint.
The plaintiffs have failed to prove their title, possession and
alleged interference before the court. Hence, plaintiffs are not
entitle for any reliefs as prayed in their plaint. The defendant
no.2 has proved her possession over the suit schedule property
and interference by the plaintiffs. Therefore, defendant no.2 is
entitle for the relief of permanent injunction. In the light of the
above discussion I answer Issue Nos.1 to 3, Additional Issue
Nos.1 to 5 in OS.No.6226/2009 in the Negative and Issue Nos.1
to 3 in OS.No.5477/2010 in the Affirmative.
Judgement
31
O.S.No.6226/2009
C/w
O.S.No.5477/2010
25. Issue No.4 in OS.No.6226/2009 and Issue No.4 in
OS.No.5477/2010 :- In view of my above discussion, I proceed
to pass the following:
ORDER
The suit of the plaintiffs in OS.No.6226/2009 is hereby dismissed with costs.
The suit of the plaintiff in OS.No.5477/2010 is hereby decreed with costs.
The defendant in OS.No.5477/2010, his men, agents or anybody claiming under him, are permanently restrained from interfering with Plaintiff's (in OS.No.5477/2010) peaceful possession and enjoyment of the suit schedule property.
Draw decree accordingly.
Keep the original judgement in OS.No.6226/2009 and the copy in OS.No.5477/2010 for record.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 26th day of September, 2018) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru.
Judgement 32 O.S.No.6226/2009 C/w O.S.No.5477/2010 ANNEXURE List of witnesses examined in OS.No.6226/2009 on behalf of:
(a) Plaintiffs' side:
PW.1 - Sri.H.Srinivas PW.2 - Smt.Latha.S
(b) Defendants' side:
DW.1 - Sri.Puttavenkatasubbaiah List of witnesses examined in OS.No.5477/2010 on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.Puttavenkatasubbaiah
(b) Defendant's side:
DW.1 - Smt.Latha.S List of documents exhibited in OS.No.6226/2009 on behalf of:
(a) Plaintiffs' side:
Ex.P1 : RTC
Ex.P2 : Certified copy of registered Sale
Deed dated 15.02.1971
Ex.P3 : General Power of Attorney dated
19.04.2012
Ex.P4 : Certified copy of Sale Deed dated
27.09.1962
Ex.P5 : Mutation Register
Ex.P6 to 12 : RTCs
Ex.P13 : Original Gift Deed dated
24.06.2016
Ex.P14 : Form-B Property Register Extract
Ex.P15 : Encumbrance Certificate
Judgement
33
O.S.No.6226/2009
C/w
O.S.No.5477/2010
Ex.P16 : Acknowledgement issued by
BBMP
Ex.P17 to 32 : Tax Paid Receipts
(b) Defendants' side:-
Ex.D1 : Copy of GPA dated 27.04.1983
Ex.D2 : Certified copy of Registered Gift
Deed dated 20.11.2009
Ex.D3 : Certified copy of Registered Sale
Deed dated 04.07.1984
Ex.D4 : Demand Register Extract
Ex.D5 : Copy of Allotment Letter
Ex.D6 : Copy of Possession Certificate
Ex.D7 : Receipt
Ex.D8 : Letter of the Society
Ex.D9 : Copy of Layout Plan
Ex.D10 to 20 : Tax Paid Receipts &
Acknowledgements
Ex.D21 : Counter folio of Pay-in-slip
Ex.D22 to 27 : Self Assessment Statements
Ex.D28 & 29 : Encumbrance Certificates
Ex.D30 : Copy of Complaint
Ex.D31 : Copy of Acknowledgement
Ex.D32 : Encumbrance Certificate
List of documents exhibited in OS.No.5477/2010 on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original Registered Gift Deed
dated 20.11.2009
Ex.P2 : Original Registered Sale Deed
dated 04.07.1984
Ex.P3 : Original Allotment Letter
Ex.P4 : Original Possession Certificate
Ex.P5 : Original Receipt
Ex.P6 : Original Letter of the Society
Ex.P7 : Original Layout Plan
Ex.P8 to 19 : Tax Paid Receipts &
Acknowledgements
Ex.P20 Counter folio of Pay-in-slip
Judgement
34
O.S.No.6226/2009
C/w
O.S.No.5477/2010
Ex.P21 : Self Assessment Statements
Ex.P22 to 24 : Encumbrance Certificates
Ex.P25 & 26 : Complaints
Ex.P27 : Acknowledgement
(b) Defendant's side:
Ex.D1 : General Power of Attorney dated
21.03.2018
Ex.D2 : RTC
Ex.D3 : Certified copy of General Power
of Attorney dated 19.04.2012 Ex.D4 : Certified copy of Registered Sale Deed dated 27.09.1962 Ex.D5 : Mutation Register Ex.D6 to 12 : RTCs Ex.D13 : Certified copy of Gift Deed dated 24.06.2016 Ex.D14 : Form-B Property Register Extract Ex.D15 : Encumbrance Certificate Ex.D16 : Letter to rectify the address Ex.D17 to 23 : Tax Paid Receipts XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU.Digitally signed by SRINIVASA DN: cn=SRINIVASA,ou=HI GH COURT OF
SRINIVASA KARNATAKA,o=GOVER NMENT OF KARNATAKA,st=Karnat aka,c=IN Date: 2018.09.27 14:47:41 IST Judgement