Bangalore District Court
N.Shankarachari vs Smt.Shanthamma on 21 December, 2018
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.25).
Dated: This the 21st Day of December 2018
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge, Bengaluru.
O.S.5190/2001
Plaintiff: 1. N.Shankarachari,
S/o.A.S.Narayanachar
- Dead, by L.Rs...
1(a) Smt.Saraswathi,
W/o.late N.Shankarachari,
Aged about 51 years.
1(b) Sri Manjunath.S,
S/o.late N.Shankarachari,
Aged about 35 years.
1(c) Sri Vijayakumar.S,
S/o.late N.Shankarachari,
Aged about 33 years.
1(d) Smt.Pushpa.S,
D/o.late N.Shankarachari,
Aged about 36 years.
All are residing at No.382,
1st Stage, 77th Cross,
Kumaraswamy Layout,
Bangalore-560078.
(By Sri V.B.Shivakumar, Advocate)
V/S
Defendants: 1. Smt.Shanthamma,
W/o.V.Narayana, No.471/1, 13th
Cross, 50th Main Road, Muniswara
Block, BSK III Stage, Bangalore-
560050.
2 O.S.5190/2001
2. V.Narayana- Dead, by L.Rs...
2(a) Smt.Bhagyalakshmi,
D/o.V.Narayana, Aged about
28 years.
2(b) Smt.Bharathi,
D/o.V.Narayana,
Aged about 26 years.
2(c) Sri Lokesh, S/o.V.Narayana,
Aged about 24 years.
All are residing at No.1116/j,
6th Cross, Kalidasnagar Slum,
BSK III Stage, Bangalore-
560085.
(By Sri Bhanuprakash, Advocate)
Date of Institution : 11.07.2001
Nature of Suit : For possession and for
mandatory injunction
Date of commencement of : 16.06.2008
evidence
Date of pronouncement of : 21.12.2018
Judgment
Total Duration : Year/s Month/s Day/s
17 05 10
(RON VASUDEV)
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit for possession and mandatory injunction.
3 O.S.5190/20012. Suit schedule property is property bearing No.1116/J, formed in Sy.No.95, 96, 121 and 122 by Bangalore Development Authority at Hoskerehalli, now known as Banashankari III Stage, Uttarahalli Hobli, Bangalore South Taluk, measuring East-West: 9.14 mtrs., North-South: 6.10 mtrs and bounded by:
East: by road West: by Kanave North: by Kanave South: by property No.1116/1
3. In nutshell the contents of the plaint are that, the plaintiff is the absolute owner and in possession of schedule property and he is a jeweller by profession. Since he was in need of money he approached the defendants, who are husband and wife, for financial help and as they were acquainted with him and his profession and that he is possessing the schedule property, agreed to lend Rs.75,000/-, provided he pays 18% interest per annum and executes certain documents by offering the schedule property as security. Therefore as per their demand the plaintiff executed registered GPA and agreement of sale and borrowed the loan by handing over all the original documents. That plaintiff was regular in the matter of payment of interest, as he grew suspicious he got cancelled the registered Power of Attorney through registered cancellation deed. Then what remained is the unregistered agreement of sale. When this plaintiff offered to return the entire loan amount and demanded his documents back the defendants refused to hand over them 4 O.S.5190/2001 and even they declined to receive the loan amount. Shockingly defendant No.1 informed that she has purchased the property and whatever amount that was lent to the plaintiff is adjusted towards the sale consideration. That at no point of time this plaintiff had agreed to sell the schedule property and there was no such transaction. After all the documents executed by him were to secure the loan amount and nothing else. When he demanded to return the documents and also to furnish the calculation so as to repay their debt entirely, both defendants threatened him with dire consequences. Then at the advice of his well-wishers plaintiff applied for an encumbrance certificate and was shocked to see that defendant No.1 having taken the sale deed from BDA clandestinely, sold that property to the defendant No.2 through registered sale deed. That plaintiff also noticed the construction of building and compound and also fixing of gate to the suit property. The said construction being illegal and unauthorized one, the defendants have no right to remain in possession of the said property. The value of the schedule property as on the date of suit being more than Rs.15 lakhs, one cannot imagine that the plaintiff could have alienated the suit property for nominal price. That cause of action for the suit arose on 04.09.1996 on the date of execution of the agreement of sale, again it arose when this plaintiff caused legal notice to defendant No.1 on 16.04.2001 and it further arose on 06.08.1996 and 03.06.2000 when the said GPAs were cancelled by the plaintiff and suit is within the period of limitation. Therefore plaintiff prays for Judgment and Decree for recovery of possession and for mandatory 5 O.S.5190/2001 injunction to demolish the unauthorized construction put up in the schedule property.
4. The defendants appeared and filed their common written statement and summary of it is as under:
that plaintiff himself approached the defendants in order to sell the schedule property for his legal necessity and after negotiation sale consideration was fixed at Rs.72,000/- and out of that amount by receiving Rs.52,000/- as an advance the plaintiff executed an agreement of sale on 20.02.1996 and he also executed a registered GPA on the same day. It was further agreed that balance amount of Rs.20,000/- shall have to be paid at the time of execution of sale deed. On the date of execution of that agreement itself as an acknowledgement of the receipt of part consideration the plaintiff put the defendant No.1 in possession of the schedule property. As there was prohibition in the lease-cum-sale agreement executed by BDA in favour of the plaintiff in order to secure the right and interest of the defendants the said registered GPA was executed by him. Under the said registered GPA plaintiff conferred all rights and interest in the schedule property to the defendant No.1, including the obtaining of sanction plan and license from BDA, to make construction in that property and also to take sale deed from the BDA. Thus pursuant to that GPA defendant No.1 obtained sanction plan and license and proceeded for construction. At that time plaintiff objected, as such once again negotiations were held and at his demand sale price was enhanced by Rs.5,000/- and by receiving the balance consideration of earlier 6 O.S.5190/2001 Rs.20,000/- and enhanced consideration of Rs.5,000/- i.e in all Rs.25,000/- plaintiff executed another agreement of sale on 28.08.1996 in favour of defendant No.1 and he also executed fresh registered GPA on the same day. Consequently the plaintiff withdrawn his objection for building plan and license, thereupon having obtained them the defendant No.1 put up multi-storied building in the schedule property. After expiry of the lease-cum-sale agree- ment BDA has executed registered sale deed in favour of this defendant No.1 on 22.07.2000. Since the defendant No.1 had borrowed loan for construction and she could not repay the same, therefore she sold the same in favour of defendant No.2 on 27.12.2000 and on the strength of that property the defendant No.2 has borrowed loan from Bangalore City Co- operative Bank by mortgaging the same. That right from the year 1996 the plaintiff is trying to blackmail these defendants in order to extract more money and to some extent he was successful in getting additional amount from them. When his further demand was not met, in order to coerce them he has come up with this false, frivolous and vexatious suit. The court fee paid on the plaint is insufficient. When defendant No.1 derived valid title from the BDA and in turn when she sold the same in favour of defendant No.2, bare suit for possession without seeking the relief of declaration of title is not at all maintainable. In the absence of the relief of declaration of title there is no question of granting the mandatory injunction to demolish the alleged illegal construction put up in the schedule property. As on the date of suit this plaintiff was not at all owner of the schedule 7 O.S.5190/2001 property nor he was in possession of it, so all other contrary plaint averments are false, frivolous and vexatious to the knowledge of the plaintiff and there is no cause of action for the suit. Thus on these grounds and other grounds defendants prayed to dismiss the suit with cost.
5. Based on the said pleadings following issues have been framed.
ISSUES
1) Whether the plaintiff proves that GPA and agreement of sale were executed by him as a security to the loan advanced?
2) Whether the plaintiff proves that construction put up in schedule property is illegal and unauthorized one?
3) Whether the defendant proves that suit in the present form is not maintainable?
4) Whether the defendant proves that court fee paid on the plaint is insufficient?
5) Whether the plaintiff is entitled for the reliefs as prayed?
6) What order or decree?
6. In support of his case plaintiff examined himself as PW.1 and got marked Ex.P.1 to P.12. During the pendency of the suit as plaintiff died his L.Rs were brought on record and amongst his said L.Rs plaintiff No.1(a) taking advantage of framing of new list of issues on 02.11.2018 by replacing the issues framed on 13.07.2006, she examined herself as 8 O.S.5190/2001 PW.2 and got marked Ex.P.13 to P.23. The defendant No.2 also died during the pendency of the suit, so his other heirs are brought on record. The said defendants examined their P.A Holder-M.Manjunath as DW.1 and through him got marked 17 documents. Heard the arguments of Sri VBS Advocate for L.Rs of deceased plaintiff, Sri BNP Advocate for defendant No.1 and L.Rs of defendant No.2. Perused the written arguments of Sri VBS Advocate and decisions relied by both side.
7. My findings on the above issues are as under:
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the affirmative
Issue No.5: In the negative
Issue No.6: As per final order below,
for the following:
REASONS
8. ISSUES No.1 AND 2: For the sake of convenience I have taken these two issues simultaneously.
9. On going through the plaint without any hesitation I say that it is hastily drafted without requisite inputs. I would point out how the pleadings are hazy, that too when the plaintiff is seeking the substantial relief of recovery of possession of an immovable property and also the 9 O.S.5190/2001 relief of mandatory injunction to pull down a multi-storied residential building existing there. One can find that plaintiff does not whisper when he borrowed loan i.e on which day. Instead it barely states that he requested for hand loan of Rs.75,000/- and it was extended by the defendants. It is also not forthcoming when the registered GPA was executed and on which day the agreement of sale was executed to secure the said loan transaction. Still more surprisingly having pleaded in para-2 of his plaint that he is the "absolute owner and in possession" of the schedule property he fails to plead how he derived title to the said property and when he lost his possession and what is the mode of losing or parting with of possession. After all what he submits is that the BDA formed layout and suit site is one such site in that layout. There is no pleading how he acquired that property from the BDA. This is crucial as he claims that he is the absolute owner of it. That apart when he claimed that he is in possession of it in the said para-2 of the plaint and while pleading in para-6 that he demanded the defendants to restore possession of the said property, in between the said paragraphs nowhere he avers when he lost that possession or when he parted with the possession and why he so parted with, particularly when he alleged that he executed the registered GPA and agreement of sale to secure the loan. In addition to this para-8 of his plaint barely states that upon noticing from the place where the defendant is residing, it was found that the defendant has constructed a gate and put up construction on the schedule property. At least when such pleading was made he ought to have stated when that alleged illegal construction was put up 10 O.S.5190/2001 by the defendants and why he did not object immediately then. It is still more interesting that in para-7 of his plaint having alleged that after obtaining encumbrance certificate he came to know about the execution of sale deed by BDA in favour of defendant No.1, clandestinely and without his knowledge, and further alleges that in turn the defendant No.1 sold that property to the defendant No.2, he fails to furnish the date of execution of sale deed by BDA in favour of defendant No.1 and the date of further alienation by defendant No.1 in favour of defendant No.2. Leave alone these minimum requirements, at least when he prayed for recovery of possession and also for the relief of mandatory injunction to demolish the construction put up by the defendants in it, having complete knowledge that BDA has executed sale deed in favour of defendant No.1 and in turn the defendant No.1 has executed sale deed in favour of defendant No.2 he did not wish to seek declaration of his title to the schedule property for the obvious reason that he had no title to it except a lease-cum-sale agreement executed by BDA. In this background one has to thoroughly analyze whether this plaintiff can seek the reliefs in the context of the limited pleading and the evidence made available by him.
10. It is not the case of plaintiff that he acquired valid title to the schedule property from BDA, yet he wants to sail somehow without garnering enough pleading and evidence. I would explain how the plaint allegations are grossly inadequate, including his evidence, to even think of the 11 O.S.5190/2001 granting of possession let alone the ordering for demolition of the so-called unauthorized construction.
11. Before that as it is the precise case of the plaintiff that he executed registered GPA and agreement of sale as a security to the loan borrowed by him, it is for him to prove the same. Unless he discharges the burden thrown on him through issue No.1, one cannot think of calling upon the defendants to prove their contention. It is least to say that unless the burden of proof is discharged by the plaintiff onus will not shift to the defendants. Therefore in order to prove the said so called loan transaction plaintiff has produced certified copy of the lease-cum-sale agreement executed by BDA in his favour on 20.02.1990 at Ex.P.1, the registered GPA cancellation letter dt.06.08.1996 at Ex.P.2, one more registered GPA cancellation letter dt.03.06.2000 at Ex.P.4. Whereas rest of the documents are not so important like the Ex.P.1, P.2 and P.4, so for the time being I would confine myself to the said three documents. In order to understand the intent and content of these three documents, one has to simultaneously refer to the documents produced by the defendants. They have produced unregistered agreement of sale dt.22.02.1996 at Ex.D.12, the registered GPA of even date at Ex.D.13, one more agreement of sale executed by the plaintiff on 28.08.1996 at Ex.D.14 and one more registered GPA of even date at Ex.D.15, the sale deed executed by BDA on 22.07.2000 at Ex.D.2 and the sale deed executed by the defendant No.1 in favour of defendant No.2 on 27.12.2000 at Ex.D.8. If these Ex.D.12, D.13, D.14, D.15, D.2 and D.8 are 12 O.S.5190/2001 read in tandem with Ex.P.1, P.2 and P.4, one will have the complete glimpse of the whole dispute.
12. It is not in dispute that through that Ex.P.1 BDA executed lease-cum-sale agreement and put the plaintiff in possession of schedule property with a stipulation that sale deed would be executed after expiry of the said lease-cum- sale agreement period. Nonetheless Ex.P.1 at condition No.5 provided that the lessee (plaintiff) was not permitted to alienate the schedule property/ leased property during the subsistence of the lease, as admitted by both PW.1 and 2 in their cross examination and also as set out in the plaint itself, for their legal necessity during the subsistence of the lease plaintiff executed the registered GPA as per Ex.D.13 and it was in pursuance to the unregistered agreement of sale as per Ex.D.12. The sum and substance of the contents of Ex.D.12 and D.13 show that for his financial requirements and family need plaintiff agreed to alienate the schedule property for consideration of Rs.72,000/- and he received Rs.52,000/- as an advance. During his cross examination PW.1 admitted the execution of both Ex.D.12 and D.13. The very Ex.D.13 was sought to be cancelled by him through Ex.P.2 in a short span of six months of executing it. Naturally the contents of Ex.P.2 are very limited and it reads that as there is a misunderstanding between the plaintiff and the defendant No.1 he is no longer interested to continue the GPA in her favour, so through that registered GPA cancellation letter he is recalling that authority. I would discuss whether was it legally permissible for him to revoke 13 O.S.5190/2001 Ex.D.13 without notice to her and whether he could have revoked or cancelled it even by causing notice, when I take up the discussion on the decisions and ratio laid down in them. At this juncture it is suffice to say that Ex.P.2 was made to recall or to revoke Ex.D.13.
13. If the said Ex.P.2 was the only one document one could have understood the alleged grievance of plaintiff that he executed the said Ex.D.12 and D.13 for the sake of security of debt he borrowed, but things will not stop there. According to plaintiff himself he once again recalled another GPA dated 28.08.1996, which was registered on 04.09.1996 through the Ex.P.4 dated 03.06.2000. Regarding this second cancellation of registered GPA there is no pleading in his plaint, but he straight away produced that document and got it marked. The defendants have also produced copy of the Ex.P.4 and it is marked as Ex.D.5. In other words Ex.P.4/ Ex.D.5 are one and the same document. Plaintiff has not pleaded how many agreements of sale he executed and how many registered GPAs he executed and on what dates, and when he recalled or cancelled the registered GPAs. That is why in the very beginning of my discussion I set out in threadbare how plaint suffers from inherent and patent defect. Without making out a case for Ex.P.4 plaintiff totally keeps mum why he was compelled to execute another GPA on 28.08.1996, which was registered on 04.09.1996? This is very crucial question which has gone unattended by him.
14 O.S.5190/200114. As rightly contended by the defendants, in order to squeeze more money from them and being successful on one occasion the plaintiff executed the Ex.D.15 and four years after its execution he proceeded to revoke it. Here also the very same question would arise whether he could have revoked the Ex.D.15 without notice and was it permissible for him to cancel it even by causing notice? As I noted above I would attend this question at later stage. In his cross exam PW.1 admitted that before canceling the registered GPAs he did not issue notice to the defendant No.1 nor he informed her. Therefore even leaving aside the legality or otherwiseness of the said two registered cancellation deeds at Ex.P.2 and Ex.P.4/Ex.D.5 it is difficult to believe that the plaintiff executed the Ex.D.12, D.13, D.14 and D.15 in order to secure the loan transaction. Admittedly there is no whisper regarding execution of so many documents as security towards loan transaction. In his cross exam PW.1 admitted that he has not produced any document to prove that he executed those documents to secure the loan borrowed by him.
15. In order to corroborate the above finding I would like to refer other documents produced and relied by the plaintiff. One such important document is the Ex.P.13, which is the photo copy of the alleged affidavit of PW.1 filed before the office of BDA. Interestingly the said document is relied by the plaintiffs, whereas its genuinety is denied by the defendants and they also made a specific suggestion in the cross examination of PW.2 that it was not submitted by them 15 O.S.5190/2001 to the BDA. In this connection let me read the said document and summarize its contents. As per the said affidavit regarding the execution of the Ex.D.15 and cancellation of the same through Ex.P.4/Ex.D.5 in the said alleged affidavit dt.13.07.2000 PW.1 sworn that he has not cancelled the GPA at Ex.D.15 and it is still in force, as such the defendant No.1 is very much authorized to do all the acts on his behalf. Thus when that document speaks against the plaintiffs they seek to rely on it and when it favours the defendants they disown it. In that document there is no recital that this plaintiff had borrowed loan and to secure that loan he executed the agreement of sale and GPA. Though there is another document viz the statement of this PW.1 recorded by the Police Inspector, Vigilance, BDA on 02.04.2001 i.e after filing of this suit, I am not inclined to rely on the same. The said statement was marked as Ex.P.20 through PW.2. Plaintiffs have also produced copy of the legal notice dt.16.04.2001 issued to the defendant No.1 as well as Commissioner, BDA venting out the grievance that late plaintiff borrowed loan and for that purpose he executed the GPA and agreement of sale, again without stating the date on which he executed the agreement and GPA and when he cancelled the said GPA, he called upon the BDA to desist from executing sale deed in favour of the defendant No.1 or in anybody's favour. In that notice it is also alleged that BDA has colluded with the defendant No.1 and it is neglecting to take note of the objections of late plaintiff. Thus through that notice it was questioned that if needful is not done both will be sued. Plaintiffs produced postal receipts at Ex.P.11 and UCP at 16 O.S.5190/2001 Ex.P.12 to affirm that the said notice was sent through RPAD as well as UCP, but while filing this suit the late plaintiff left out the BDA for the reasons best known to him. Though he made attempts to implead it at later stage through I.A, it was rejected. The purpose of referring to these documents is to point out that except the Ex.P.10 and the plaint allegations nowhere there is any material, which court can take cognizance to hold that in 1996 he received the amount as a loan and executed the sale agreements and GPAs to secure that loan. The strongest reason to doubt his version is the subsequent execution of Ex.D.14 and D.15 that too when he had already made attempt to revoke the Ex.D.13 through Ex.P.2. Since Ex.D.14 is not a registered document, even if one doubts about its genuinety, there is no reason to disbelieve the Ex.D.15, which is a registered document. When such second registered GPA is produced if at all contrary is asserted by the very executant, it is for him to show why he once again executed such GPA in favour of defendant No.1 authorizing to do all acts on his behalf, including to develop that property and also to alienate it. Regarding these things absolutely there is no answer from PW.1. In that Ex.D.15 on page No.4 even he authorized the defendant No.1 to take sale deed from BDA on his behalf. In view of the said authorization only defendant No.1 took sale deed from BDA on 22.07.2000 as per Ex.D.2 and she sold it to the defendant No.2 as per Ex.D.8.
16. The fact that by obtaining building plan and license in the year 1996 the defendant No.1 constructed two-
17 O.S.5190/2001storied building there is a further proof that it was not a loan transaction, otherwise this plaintiff ought not to have kept quite when she was progressing in the construction. Nonetheless he objected for issuance of building plan and license to her at initial stages, as disclosed by him in his cross exam, but he did not rush to the court in that 1996 itself. His silence from 1996 to 2001 i.e till filing of this suit sufficiently show that he was only interested in getting enhanced sale consideration and not in the property. His admission at the end of page No.12 and beginning of page No.13 of his cross exam that he has no document to prove the payment of interest to defendant No.1 further adds to my reasoning.
17. The cross exam of PW.2 further supports the defendants' version. In para-2 of her cross exam it was elicited that in those days she was also going to the Garment Factory as their family was in financial stress and her husband (PW.1) was badly in need of money. It was further elicited that they had no funds to construct house in the suit property and as per the stipulation contained in the Ex.P.1 they were expected to construct house in it within three years from the date of lease-cum-sale agreement. Here her another admission that PW.1 took the sale deed from BDA on 05.10.2001 as a P.A.Holder of K.B.Jaisingh in respect of house No.382, EWS of Kumaraswamy Layout as evidenced by Ex.D.17 shows that, in order to purchase the said property, which was a built house, the late plaintiff was in need of money, as such he indulged in all these acts. Therefore 18 O.S.5190/2001 without any hesitation I reject the contention of the plaintiff that he executed the undated GPA and agreement of sale as a security to cover the alleged loan borrowed by him etc. If this conclusion is arrived, the construction made by defendant No.1, the building plan at Ex.D.6 and silence of this plaintiff from 1996 to 2001 show that absolutely he had no grievance towards her said construction. Even otherwise once the sale deed was executed by BDA in favour of defendant No.1 and she having acquired title to the said property as a P.A.Holder of plaintiff, one cannot hold that the said construction is illegal and unauthorized one. For the aforesaid discussion I answer both the issues in the negative.
18. ISSUE No.4: In their written statement at para-19 the defendants specifically contended that plaint is deliberately under-valued, as such court fee paid on the plaint is insufficient. They also sought direction to the plaintiff to pay proper court fee. In view of said submission this issue has been framed. In order to elaborate the same I would straight away go to the valuation slip filed along with plaint on 11.07.2002. There showing the market value of the suit property at Rs.75,000/- plaintiff paid court fee of Rs.4,875/- valuing his relief under Section 38(2) of KCF and SV Act. But if one reads the said Section, which deals with cancellation of decrees and instruments, it can be said without any hesitation that it has nothing to do with the relief of recovery of possession and the demolition of alleged unauthorized construction put up in the schedule property. Therefore when a objection was raised by the defendants by 19 O.S.5190/2001 filing an I.A under Order VII Rule 11 of CPC to reject the plaint for non payment of proper court fee, getting alerted the plaintiff came forward to pay the proper court fee and at the direction of my predecessor in office, a provisional market value was ascertained through the concerned Sub-Registrar as per the guideline value then prevailing and assessing the same at Rs.2,40,000/- this plaintiff was directed to pay the balance court fee of Rs.11,550/-. Regarding which a office note can be seen in the proceedings of the ordersheet dated 26.11.2010. Pursuant to that direction by filing a fresh valuation slip on 25.07.2011 the plaintiff paid balance court fee at Rs.11,550/- as total court fee payable by him was Rs.16,425/-.
19. But after trial I feel that even the payment of the said court fee is also totally inadequate in the light of the very pleadings and the contention of plaintiff. Here I may straight away refer to para-8 of the plaint. There it is averred that market value of the schedule property as on the date of presentation of the plaint was more than Rs.15 lakhs. Having made such assertion there with a verification at the foot of the plaint that whatever he has stated in that plaint is true and correct to the best of his knowledge, suddenly in the valuation slip in order to save the court fee taking a U-turn plaintiff shows its market value at Rs.75,000/-. When his own written admission in para-8 of the plaint states that market value was more than Rs.15 lakhs, it was incorrect on the part of the office to assess the market value based on the alleged Government guideline value at Rs.400/- per sq.ft. for 600 20 O.S.5190/2001 sq.ft. I would show how the said assessment of market value by the office based on guideline is incorrect by referring to the very suggestion made by the plaintiffs in the cross examination of DW.1 on page No.24. There at about 4th line from the top it was suggested by the plaintiff-Advocate that in the year 2000 market value of the schedule property was approximately Rs.1 crore. Of course the said suggestion was denied by DW.1, but the fact remains that schedule property was worth more than Rs.2,40,000/- in the light of para-8 of the plaint.
20. In the cross examination of PW.1 and 2 the defendants have not elicited anything about the market value of the schedule property nor any suggestion was made to that effect. So based on the para-8 of the plaint I can very well hold that suit property was worth Rs.15 lakhs. If this value is arrived, then the next question would be what is the proper court fee which the plaintiff was expected to pay and under which provision. To decide this one need not ponder too much. In the case in hand plaintiff is seeking for possession as it is not his case that he was forcibly dispossessed and he is seeking to restore his possession within six months of such dispossession as contemplated under Section 6 of S.R.Act. Therefore it is Section 29 of the KCF and SV Act, which is applicable to the facts and circumstances of this case. In the given facts of the case if plaintiff seeks possession based on his so-called title, he has to pay court fee on the market value of the schedule property. In that event court fee payable by him would be Rs.87,125/- as per Article (1)(viii) of Schedule-I 21 O.S.5190/2001 of KCF and SV Act. Since already Rs.16,425/- is paid by him still he has to pay Rs.70,700/-. Therefore in view of this finding I answer this issue in the affirmative.
21. ISSUES No.3 AND 5: Since these two issues deal with the maintainability of the suit and also the reliefs to be granted to the plaintiff, I have taken them simultaneously.
22. The discussion and findings on the aforesaid issues leave no doubt in anybody's mind that suit in the present form is not maintainable and plaintiff is not entitled for any relief. Before I render my final finding in the matter I would refer to the decision relied by the plaintiffs to find out whether they would come to their help in any manner. By referring to the decision reported at AIR 2009 SC 3077 (Suraj Lamp and Industries (P) Ltd.-through Director /vs/ State of Haryana and another) Sri VBS Advocate contended that GPA, sale agreement and document like affidavit will not convey valid title of an immovable property. No doubt in the said decision which is rendered in two parts and second part having been reported at (2012)1 SCC 656, summarizing the discussion made by it on such invalid documents Hon'ble Court categorically held that the said Judgment has prospective application. Infact it gone to the extent of stating that the persons who are having invalid title through SPA/GPA/affidavit can prove their title in a manner known to the law. Whereas in the given facts of the case the defendant No.1 having taken sale deed based on the registered GPAs of plaintiff, that too executed at two different intervals, has 22 O.S.5190/2001 already perfected her title to the suit property and even she has transferred that property to the defendant No.2. Such being the case even after attacking the execution of sale deed by BDA in favour of defendant No.1 (Ex.D.2) plaintiff totally forgets that he too has taken sale deed from the very BDA as GPA Holder of K.B.Jaisingh (Ex.D.17) to which I referred while discussing on issues No.1 and 2. When plaintiff can take sale deed, that too after filing of this suit i.e on 05.10.2001 from the BDA as per Ex.D.17, it is too much for him to question its authority to execute sale deed in favour of his attorney (defendant No.1). In this connection I may refer to the decision of our Hon'ble High Court reported at ILR 2009 KAR 2747 (Smt.A.Bhagyamma and another /vs/ BDA). In that case when a similar question arose whether an agent of an allottee can take sale deed from BDA, discussing on Section 54 of Transfer of Property Act, which defines the term "sale" our Hon'ble High Court held that it is perfectly within the powers of BDA to execute sale deed in favour of the GPA Holder of an allottee. Therefore it is not within the reach of the plaintiff to question the legality of Ex.D.2 by saying that BDA acted in excess of its authority that too without making it as a party. Similar opinion was expressed by Hon'ble High Court of Madras in the decision reported at AIR 2010 MADRAS 61 (Mrs. B.Maragathamani and others /vs/ The Member Secretary, Chennai Metropolitan Development Authority, the Monitoring Committee and Gurusamy Chief Planner). In that case when a question arose whether CMDA could insist for registered Power of Attorney, particularly when an application is filed through a P.A.Holder 23 O.S.5190/2001 for regularization of the building plan, answering that question in para-17 of its Judgment Hon'ble Court held that the rejection of application for regularization by CMDA solely on the ground that the Power of Attorney was not registered is incorrect. It directed the said authority to consider the application for regularization filed by the P.A.Holder and to dispose off his application. Infact the said decision, referred by the plaintiffs speaks against them.
23. Then by referring to decision reported at AIR 2005 SC 3401 (State of Rajasthan and others /vs/ Basant Nahata) it was contended that since lease-cum-sale agreement (Ex.P.1) stipulated ten years prohibition for alienation of the said property, it was wrong on the part of defendants to take registered GPAs and agreements of sale in derogation of the said non-alienation clause, therefore it was contended that registration of sale deed by BDA in favour of defendant No.1 as per Ex.D.2 is against public policy. I afraid as held in that decision itself what is opposed to public policy is a matter depending upon the nature of transaction. In the case in hand when the plaintiff himself parted with possession for consideration, that too for his necessity and his inability to put up construction within the stipulated period, it cannot be said that it is against the public policy.
24. Then referring to the decision reported at AIR 1994 SC 853 (S.P.Chengalvaraya Naidu- dead by L.Rs /vs/ Jagannath-dead by L.Rs and others) plaintiff argued that fraud by a litigant would vitiate the whole process. No doubt 24 O.S.5190/2001 in that case Hon'ble Court deprecated the conduct of the parties who indulge in fraudulent acts in obtaining favourable orders from the court and expressed that such orders will not come to the help of such litigants, but the said observation will not come to the help of plaintiffs as they themselves are guilty of suppressing the truth with scanty pleading. Having executed registered GPAs twice over a span of four months and canceling them again unilaterally, it is the late plaintiff who exhibited his wavering mind. He did not stick up to one stand at least while coming to the court and he did not disclose all the true facts which were well within his knowledge. Placing only some of the facts he brought a half- baked cake and expects that one should pat his back saying that he has cooked it well. The short-comings in his pleadings to which I referred in the beginning of my discussion on issues No.1 and 2 is more than enough to show that there is no enough pleading in terms of Order VI Rule 4 of CPC to imagine "fraud", "coercion" etc. Therefore the ratio laid down in Changalvaraya Naidu's case has no application to the case in hand.
25. Then by referring to the decision reported at AIR 1991 SC 395 (Smt.Gitarani Paul /vs/ Dibyendra Kundu @ Dibyendra Kumar Kundu) it is canvassed that since plaintiff is seeking possession, it is not necessary to plead the date of dispossession. But having gone through the said decision in one sentence I would say that plaintiff has not read the said decision and understood it properly. In that case having come to the conclusion that plaintiff has proved his title, 25 O.S.5190/2001 court held that once such title is proved defect in pleading regarding the date of dispossession has no consequence. In the given case plaintiffs have failed to prove their title. Therefore if possession is sought by them they have to specifically aver when they lost their possession or when they parted with it. That makes the distinction between that case and this case.
26. Then by referring to the decision reported at (2015) 4 SCC 601 (Om Prakash-dead, by L.Rs /vs/ Shantidevi and others) it was canvassed by the plaintiffs that suit for mandatory injunction for delivery of vacant possession is very much maintainable. Wherefore there is no need for them that they should possess title or seek for declaration of title. I have gone through the said decision. In that case also having convinced about the title of the plaintiff Hon'ble Supreme Court held that when the title of the plaintiff is not in dispute, such plaintiff can seek possession of property straight away. But that is not the case here. Then the plaintiff cited the decision reported at AIR 2014 SC 2301 (Coffee Board /vs/ M/s.Ramesh Exports Pvt.Ltd.) rendered in respect of Order II Rule 2 of CPC, but failed to explain how that decision is helpful to them. Therefore holding that none of the decisions cited by the plaintiffs would come to their rescue, now I advert to the decisions relied by the defendants.
27. In the decisions reported at ILR 1993 KAR 2306 (Mohammed @ Podiya /vs/ Assistant Commissioner) as well as in the decision reported at ILR 1993 KAR 3260 26 O.S.5190/2001 (Corporation Bank /vs/ Lalitha.H.Holla) Hon'ble Court held that where a Power of Attorney is coupled with interest the same cannot be revoked. Especially in the case of Mohammed @ Podiya's case GPA was executed to construct the building on the property and to make other improvements with a power of sale. Therefore considering the contents of that GPA Hon'ble Court held that by no stretch of imagination it can be said that it was a simple case of creating agency, instead it being coupled with interest, it held that such GPA is not revocable. In the case in hand also having received the part consideration and enhanced consideration under Ex.D.13 and D.15 the plaintiff denuded all his power and interest over the schedule property in favour of the defendant No.1, therefore he could not have revoked the said registered GPAs unilaterally by executing either Ex.P.2 and Ex.P.4/Ex.D.5. Even if such instruments were made by him subsequently, they have no force of law. It is not his case that he refunded the amount allegedly borrowed from the defendants and thereafter he revoked the GPAs issued by him.
28. In the decision reported at AIR 2008 SC 2033 (Anathula Sudhakar /vs/ P.Buchi Reddy-dead, by L.Rs and others) at para-17 summarizing the discussion made by it and under what circumstances what kind of reliefs can be sought by a party/plaintiff at para-17(a) Hon'ble Court was pleased to make the following observation.
"17(a): Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a 27 O.S.5190/2001 consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for posse- ssion with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor."
In the case in hand when admittedly plaintiff has no title over the suit property and when he is out of possession of it and when it is not his case that he was illegally dispossessed within a period of 6 months immediately anterior to the date of suit, the only option that was available to him is to seek for declaration of title and thereafter he ought to have sought for mandatory injunction for demolition of construction put up there and for possession, no matter he could have omitted for cancellation of sale deed executed in favour of defendant No.1 by BDA as per Ex.D.2 and the subsequent alienation by defendant No.1 through Ex.D.8. According to me this legal lapse would go to the root of the matter and disentitles the plaintiffs in maintaining this suit in the present form.
29. I would substantiate the said finding with another decision of Hon'ble Supreme Court reported at AIR 2008 SC 901 (Gurunath Manohar Pavaskar and others /vs/ Nagesh Siddappa Navalgund and others). In that case reversing the Judgment of the High Court, Hon'ble Court held that when a person seeks mandatory injunction in respect of an immovable property title of such person has to be arrived and 28 O.S.5190/2001 without deciding it such substantive relief cannot be granted. Thus summing up my discussion I am convinced more than enough that suit in the present form is not maintainable and plaintiff is not entitled for any of the relief as prayed herein. Accordingly I answer issue No.4 in the affirmative and issue No.5 in the negative.
30. ISSUE No.6: In the result I proceed to make the following:
ORDER Suit is dismissed with cost.
Plaintiffs are directed to pay deficit court fee of Rs.70,700/-.
Office to draw decree subject to payment of the said deficit court fee.
(Dictated to the Stenographer, transcription computerized, then corrected and pronounced by me in open court this the 21st Day of December 2018) (RON VASUDEV) III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on plaintiffs' side:
PW.1 N.Shankarachari PW.2 Smt.Saraswathi
List of documents exhibited on plaintiffs' side:
Ex.P.1 Certified copy of lease-cum-sale agreement dated 20.02.1990 29 O.S.5190/2001 Ex.P.2 Cancellation Deed of General Power of Attorney, dated 06.08.1996 Ex.P.3 Letter of the Secretariat Ex.P.4 Cancellation Deed of General Power of Attorney, dated 03.06.2000 Ex.P.5 Acknowledgement issued by BDA Ex.P.6 Property and other taxes and fees challan of BDA Ex.P.7 Remittance Challan of BDA Ex.P.8 Intimation of Property Tax Due Ex.P.9 Encumbrance Certificate Ex.P.10 Office copy of legal notice dt.16.04.2001 Ex.P.11 Postal receipts Ex.P.12 UCP receipt Ex.P.13 Copy of affidavit dt.13.07.2000 Ex.P.14 to Copy of police notices P.19 Ex.P.20 Copy of statement of plaintiff Ex.P.21 Copy of complaint given by defendants Ex.P.22 Copy of Tippani Ex.P.23 Letter dt.12.08.2013 addressed to Revenue Department by the plaintiff List of witness examined on defendants' side:
DW.1 M.Manjunath 30 O.S.5190/2001 List of documents exhibited on defendants' side:
Ex.D.1 General Power of Attorney
Ex.D.2 Copy of sale deed dt.22.07.2000
Ex.D.3 Khata Certificate
Ex.D.4 Khata extract
Ex.D.5 Certified copy of cancellation of GPA
Ex.D.6 Approved building plan
Ex.D.7 Tax paid receipt
Ex.D.8 Certified copy of sale deed dt.27.12.2000
Ex.D.9 Certified copy of Equitable Mortgage by
Deposit of Title Deeds
Ex.D.10 Application of plaintiff for cancellation
of building plan
Ex.D.11 No objection letter of plaintiff addressed
to the Executive Engineer
Ex.D.12 Sale Agreement dt.20.02.1996
Ex.D.13 General Power of Attorney dt.20.02.1996
Ex.D.14 Agreement of sale dt.28.08.1996
Ex.D.15 Certified copy of General Power of Attorney
Ex.D.16 BDA Remittance Challan
Ex.D.17 Copy of sale deed dt.05.10.2001
(RON VASUDEV)
III Addl. City Civil & Sessions Judge,
Bengaluru.
31 O.S.5190/2001