Bangalore District Court
Mrs. Susheela Jain @ Susheela Bai vs Sri. Chellappa on 6 January, 2022
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-75)
Dated this 6th Day of January 2022
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G. (B.A. LL.B.,)
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 26041/2007
PLAINTIFF: Mrs. Susheela Jain @ Susheela Bai,
W/o Mohanlal Jain,
Aged about 62 years,
R/at No.54, 4th Main Road,
Bhuvaneshwari Nagar,
R.T. Nagar Post,
Bangalore - 560032.
REP BY: SRI.Paras Jain, Advocate .
V/s
DEFENDANTS: 1 SRI. Chellappa,
Major,
Illegally residing at
Ground Floor No.16,
Maheshwaramma Temple,
J.C.Nagar(Munireddy Palya)
Bangalore-560 006.
2 Sri. Gunashekar,
Major,
Illegally residing at
Ground Floor No.16,
Maheshwaramma Temple,
2
OS.26041/2007
J.C.Nagar(Munireddy Palya)
Bangalore-560 006.
3 Sri. J. L. Nathan,
S/o Late C.D.Josef,
Major,
Illegally residing at
Ground Floor No.24,
Church Road, 4th Cross,
Rajappa Block,
J.C.Nagar,
Bangalore-560 006.
4 Mrs. A.L.Mary Rajeswari,
W/o J.L.Nathan, Major,
R/at No.24/1,4th Cross,
Church Road,
Rajappa Block,
Bangalore-560 006.
5 N. Thara Sofia,
D/o J.L.Nathan, Major,
R/at No.24/1,4th Cross,
Church Road,
Rajappa Block,
Bangalore-560 006.
D1 & 2: Exparte.
D3: By N.J.P., Advocate.
Date of Institution of the suit 07/06/2007
Nature of the Suit (Suit on pro-note, suit for
Possession , mesne profits
declaration and possession, suit for
& Injunction
injunction, etc.)
Date of the commencement of recording of the
04/03/2011
Evidence.
3
OS.26041/2007
Date of pronouncement of Judgment 05/01/2022
Year/s Month/ Day/s
Total duration
s
14 06 29
JUDGMENT
Plaintiff has filed the instant suit for possession, mesne profits at the rate of 500 per day, perpetual injunction and cost.
FACTS OF THE CASE:
2. Plaintiff is the owner of the suit property. She purchased the said property under the registered sale deed dated: 6.4.1979. By obtaining sanction plan, she constructed building consisting of ground, first and second floor. At the time of construction of the building, she was in possession of a rented premises. Her land-
lord filed HRC petition to evict her from the said premises. Therefore, she completed the construction of the building and planned for house warming ceremony immediately after Pongal (Sankranthi). She contends that 4 OS.26041/2007 when the things stood thus, defendants 1 and 2 committed trespass into the suit property and illegally occupied ground and 1st floor respectively. Plaintiff contends that she is in possession of 2 rooms constructed on the 2nd floor. She contends that on 14.12.2006 she gave complaint against defendants 1 and 2 regarding committing trespass into the suit property. She stated that in the meanwhile, she received a notice from the SHO of J.C. Nagar Police station. After receipt of notice, when she went to J.C.Nagar police station, she came to know that 3 rd defendant filed a false complaint against her claiming right over the suit property on the basis of created and fabricated document. She contends that she and 3rd defendant are the social workers. She know him since 5 years prior to the filing of the instant suit. He provided financial assistance to her to construct building in the suit property and also helped her in purchasing construction materials. Plaintiff contends that in the complaint given by 3 rd defendant 5 OS.26041/2007 against her he falsely contended that she executed sale agreement in respect of suit property. She contends that she neither executed agreement of sale in favour of 3 rd defendant or in favour of her family members, nor put them in possession of the suit property. Plaintiff contends that after she gave complaint dated: 14.12.2006, defendants 1 and 2 appeared before the police and falsely contend that as tenants they are in possession of 1st and 2nd floor of the suit property. Plaintiff contends that she has not given the suit property on lease to any of the defendants. They illegally occupied the suit property. They have no manner of any right, title or interest in/or over the suit property or any portion thereof. Their possession in the suit property is illegal and unauthorised. Therefore, they are liable to vacate and handover the vacant possession of the suit property to her and also to pay mesne profits for illegal occupation. On these and other grounds stated in the plaint, initially 6 OS.26041/2007 plaintiff sought the relief of possession, mesne profits and other reliefs against defendants 1 to 3.
3. Defendant No.3 resisted the suit by filing written statement. He contends that plaintiff is the owner of land with dilapidated structure existing therein. Plaintiff had no funds to develop the said property. She wasalso in need of funds to expand her money lending and pawn-broking business. Therefore, she agreed to sell the said land with dilapidated structure to his wife Mrs. A.L.Mary Rajeswari and daughter Mrs. N. Thara Sophia. Plaintiff received handsome amount as advance and handed over the possession of the said land with dilapidated structure to the intending purchasers. The intending purchasers after taking possession of the said property, in part performance of the contract, constructed residential building consisting of ground, 1 st and 2nd floor and leased out ground and 1st floor to the tenants. 3rd defendant contends that the intending purchasers are in possession of 2nd floor. He contends that plaintiff after 7 OS.26041/2007 entering into agreement of sale with intending purchasers having regard to the escalation of price of immovable properties in Bengaluru started demanding higher sale consideration than agreed. The intending purchasers issued legal notice to the plaintiff calling upon her to appear before the Sub-Registrar and execute registered sale deed. After receipt of notice, plaintiff not executed the sale deed of the suit property and filed the instant suit by falsely contending that defendants 1 and 2 illegally occupied the 1st and 2nd floor of the building existing in the suit property. 3rd defendant contends that defendants 1 and 2 were never in possession of the ground and 1st floor of the building existing in the suit property. 3rd defendant contends that at the time of filing of the suit, the tenants of intending purchasers were in possession of ground and 1st floor of the building existing in the suit property . 3 rd defendant contends that plaintiff by suppressing the factum of execution of agreement of sale in favour of his wife and daughter, has filed false 8 OS.26041/2007 suit by creating a story that defendants 1 and 2 illegally occupied the suit property. 3 rd defendant denied that he provided financial assistance to plaintiff to construct building and also helped her in purchasing the construction materials. He contends that his wife and daughter viz., intending purchasers and their tenants in actual possession of the building existing in the suit property are necessary parties to the suit. In view of they not made as parties , the suit is bad for non-joinder of necessary parties. 3rd defendant contends that the valuation made by plaintiff is improper and court fee paid is insufficient. On these and other grounds stated in the written statement, 3rd defendant prays to dismiss the suit.
4. In view of 3 rd defendant contends that his wife and daughter are necessary parties to the suit, plaintiff impleaded them as defendants 4 and 5. After impleadment, defendant No.4 filed written statement reiterating the contention taken by her husband, the 3 rd 9 OS.26041/2007 defendant with little elaboration. Defendant No.5 adopted the written statement of defendant No.4.
5. Defendants 4 and 5 contend that plaintiff executed agreement of sale dated: 15.02.2005 agreeing to sell the suit property for a sum of Rs.5,50,000/-, received major portion of sale consideration ie.,Rs.4,40,000/-,handover the possession of the suit property, permitted them to remove the dilapidated building existing therein and construct a new building. Accordingly, as part performance of the agreement of sale, they constructed building by obtaining plan. Since 2005 they have been in possession and enjoyment of the suit property. They contend that they always ready and willing to get the sale deed of the suit property by making payment of balance of sale consideration of Rs.1,00,000/-. On 28.09.2005 they took demand draft of Rs.60,000/- and had cash Rs.50,000/- to be paid to plaintiff to get the sale deed. The sale deed was also prepared. Plaintiff came to the office of Sub-Registrar and 10 OS.26041/2007 requested them to give the original agreement of sale dated: 15.2.2005 and the draft sale deed for verification by her advocate. Believing her they handed over the original agreement of sale and draft sale deed to the plaintiff. Plaintiff who has assured to return within half an hour by showing the said documents to her advocate did not return till the closing of the office time of Sub- Registrar. In this regard they lodged complaint to J.C.Nagar Police Station on 12.12.2006. They contend that they also filed PCR.No.1237/2007 against plaintiff which was subsequently registered as Cr.No.45/2007. After investigation, the police filed 'B' report. Defendants 4 and 5 contend that plaintiff with dishonest intention retained original agreement of sale dated: 15.02.2005 and not coming forward to execute the sale deed of suit property. Defendants 4 and 5 contend that though the sale deed of the suit property was not made in their favour in part performance of agreement of sale , they are in possession of the suit property since 15.2.2005. 11
OS.26041/2007 Defendants 4 and 5 contend that in the year 2019, plaintiff impleaded them as parties to the suit. Thus plaintiff made them as parties 14 years after handing over the possession of suit property under agreement of sale dated: 15.2.2005. Therefore, the instant suit is barred by law of limitation. Defendants 4 and 5 contend that they are ever ready and willing to perform their part of contract to get the sale deed of the suit property. Therefore, they are entitle to get the sale deed. They contend that as intending purchasers in part performance of agreement of sale dated: 15.2.2005 they are in possession of the suit property. Therefore, their possession in the suit property is not illegal. Therefore, they are not liable to pay damages or mesne profit to plaintiff. On these and other grounds stated in the written statement defendants 4 and 5 pray to dismiss the suit and sought counter claim directing the plaintiff to execute the sale deed of suit property in their favour by receiving balance sale consideration. 12
OS.26041/2007
6. Plaintiff filed reply to the counter claim. She denied that she executed agreement of sale dated:
15.02.2005 in favour of defendants 4 and 5, handed over possession to them, permitted them to put up construction and accordingly defendants 4 and 5 constructed building consisting of ground, 1 st floor and 2nd floor. Plaintiff contends that she constructed the said building by taking financial assistance from 3 rd defendant. Plaintiff contends that the counter claim sought by defendants 4 and 5 15 years after making of the alleged agreement dated: 15.02.2005 is hopelessly barred by limitation. She contends that defendant No.3 who provided financial assistance to her for construction of building in the suit property colluding with his wife and daughter created false document and on the basis of the said created and concocted document, defendants 4 and 5 filed false complaint against her. After investigation, the police filed 'B' report. She contends that in view of she not executed agreement of sale dated: 15.2.2005, in 13 OS.26041/2007 favour of defendants 4 and 5 there is no cause of action for them to seek the counter claim for specific performance. On these and other grounds stated in the re-joinder , plaintiff prays to dismiss the counter claim.
7. A perusal of record would show that after service of summons, defendants1 and 2 have not appeared before the court in person or through counsel. Therefore, they have been placed exparte.
8. On the basis of the aforesaid pleadings on 25/01/2011 the then presiding officer has formulated the following:
ISSUES
1. Whether the plaintiff proves her title over ground floor and 1st floor of suit schedule property? (DELETED)
2. Whether the plaintiff is entitled for possession of ground floor and 1 st floor of suit schedule property?
3. Whether the plaintiff is entitled for mesne profits claimed?14
OS.26041/2007
4. Whether the plaintiff is entitled for permanent injunction claimed?
5. Whether the plaintiff is entitled for damages of Rs.10,000/- per date of hearing as special damages?
6. Whether the court fee paid is proper?
7. What order or decree?
9. On 11.08.2011 issue No.1 was deleted and issue No.2 was recasted as under:
1. Whether the plaintiff proves that she is entitled for possession of suit schedule property?
10. After defendants 4 and 5 filed written statement along with counter claim on 2.2.2021, the following additional issues were formulated.
1. Whether defendants 4 & 5 prove that, plaintiff executed Agreement of Sale dated:15/02/2005 in their favor agreeing to sell the suit property for a sum of Rs.5,50,000/-?
15
OS.26041/2007
2. Whether defendants 4 & 5 prove that, on 15/02/2005 they paid advance amount of Rs.1,50,000/- to the plaintiff?
3. Whether defendants 4 & 5 prove that, on 31/05/2005 they paid a sum of Rs.1,50,000/- to plaintiff towards the party of sale consideration?
4. Whether defendants 4 & 5 prove that, they are in possession of the suit property as part performance of an Agreement of Sale dated:15/02/2005?
5. Whether the plaintiff proves that, the relief of specific performance sought by defendants 4 & 5 is barred by Limitation?
6. Whether defendants 4 & 5 prove that, they were ever ready and willing to perform their part of the contract, as per Agreement of Sale dated:15/02/2005 to get the sale deed of suit property?
16
OS.26041/2007
7. Whether defendants 4 & 5 are entitled for the relief of specific performance?
8. Whether defendant No.4 and 5 prove that the suit is barred by Limitation?
11. Plaintiff examined herself as PW1 and produced documents marked at Ex.P.1 to Ex.P.35. 3rd defendant examined as DW.1. He produced 12 documents marked at Ex.D. 1 to 12. During the cross- examination of PW.1, by confronting 2 photos were marked at Ex.D. 13 and 14. The 5 th defendant examined as DW.2. She produced documents marked at Ex.D. 15 to
20. Defendants 3 to 5 examined 3 witnesses as DWs3 to
5. Through DW.3 and 4, Ex.D. 21 and 22 were marked.
12. Though sufficient time given, plaintiff not submitted arguments. Therefore, on 2.11.2021 plaintiff's arguments was taken as nil by giving liberty to file 17 OS.26041/2007 written arguments on or before 10.11.2021. plaintiff not filed written arguments on or before 10.11.2021.
13. Heard the counsel for defendants 3 to 5 in length. He in addition to submitting oral arguments, filed written arguments with rulings.
14. My findings on the above issues are as under:
ISSUE NO.1: DELETED Recasted ISSUE NO.2: In the Affirmative ISSUE NO.3: Plaintiff is entitled for mesne profits @ 15,000/-per month ISSUE NO.4: In the Negative ISSUE NO.5: In the Negative ISSUE NO.6: In the Affirmative 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: Does not survive for consideration ADDL.ISSUE NO.6: Does not survive for consideration ADDL.ISSUE NO.7:Does not survive for Consideration Addl.ISSUE NO.8: In the Negative ISSUE NO.7: As per the final order 18 OS.26041/2007 for the following:
REASONS
15. ADDITIONAL ISSUES NO.1TO 4: Plaintiff (PW.1) has stated that under Ex.P. 1 sale deed dated:
6.4.1979 she purchased the suit property and by obtaining licence she constructed building therein consisting of ground, 1st and 2nd floor. The recitals of Ex.P. 2 khata extract and Ex.P.3 khata certificate would support the case of the plaintiff that on the basis of Ex.P. 1 sale deed her name was entered in the khata of the suit property. Ex.P. 10 to 13, 16 to 19 are the electricity bills, Ex.P. 14 and 15 are th water bills, Ex.P. 21 is the tax paid receipts of suit property. A perusal of the same would show that plaintiff paid property tax. Water bill and electricity bill of the suit property. Defendants 3 to 5 have not disputed Ex.P. 1 sale deed, Ex.P. 2 khata extract and Ex.P. 3 khata certificate of the suit property.
Defendants 3 to 5 admitting plaintiff's title over the suit property contends that defendants 4 and 5 entered into 19 OS.26041/2007 agreement of sale dated: 15.2.2005 with plaintiff to purchase the suit property for a sum of Rs. 5,50,000/- paid a sum of Rs. 4,40,000/- towards sale consideration, as part performance of the contract, plaintiff handed over the possession of the suit property to them and also permitted to put up construction. As per the terms of the agreement of sale, defendants 4 and 5 obtained license and put up construction of building consisting of 1 st and 2nd floor. Thus, according to the defendants 3 to 5, defendants 4 and 5 are in possession of suit property as intending purchasers in part performance of agreement of sale. It is needless to say that the burden is on the defendants 4 and 5 to prove the said contention.
16. Section 91 of the Evidence Act deals regarding evidence of the terms of contract, grants and other dispositions of property reduced to form of document and it reads thus:
Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.--When the terms of a contract, or of a 20 OS.26041/2007 grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.--When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence2 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."
17. A bare reading of section 91 of the Evidence Act it is clear that when the terms of the contract is reduced to the form of document, no evidence shall be given in proof of the terms of such a contract except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible. In the instant case, admittedly, defendants 3 to 5 have not produced the agreement of sale dated: 15.2.2005 or its authenticated copy. Therefore, the oral testimony of DW.1, 2 and 5 regarding making of agreement of sale 21 OS.26041/2007 dated: 15.2.2005 cannot be countenanced. Therefore, there is no acceptable legal evidence on record to prove that plaintiff executed agreement of sale dated:
15.2.2005 agreeing to sell the suit property to defendants 4 and 5 for a sum of Rs. 5,50,000/- and put them in possession of the said property with permission to put up construction.
18. As I have already stated above, initially plaintiff has filed the instant suit against defendants 1 to
3. Defendant No.3, who is none other than the husband of 4th defendant and father of 5th defendant filed written statement. In the written statement, in para No.8 he baldly contended that plaintiff executed agreement of sale in favour of defendants 4 and 5, received handsome amount by way of advance, handed over the possession of suit property and permitted them to put up construction. For the raasons best known in the written statement, he has not stated when the agreement of sale was made, what was the sale consideration and how 22 OS.26041/2007 much of amount was paid as advance. On 21.11.2014 3rd defendant was examined as DW.1. In his evidence for the first time, he stated that plaintiff executed agreement of sale dated: 15.12.2005 in favour of defendants 4 and 5. In the examination-in-chief, DW.1 without stating the total sale consideration, has stated that in total Rs.4,40,000/- was paid to plaintiff as part of sale consideration. He has not stated who, when and through which mode, Rs.4,40,000/- was paid to plaintiff.
19. In para No.6 of the examination-in-chief, DW.1 has stated that on the date fixed for registration of the sale deed, a draft sale deed was prepared and furnished to the plaintiff. After plaintiff confirmed the draft, a fair copy was prepared and defendants 4 and 5 got demand drafts to get stamp paper and registration fee. He stated that on that day, plaintiff requested to give original agreement of sale and fair copy of the draft sale deed to show the same to her Chartered Accountant to get certain clarifications. Believing her version and trusting her, 23 OS.26041/2007 defendants 4 and 5 gave the original agreement of sale and fair copy of the sale deed. DW.1 has stated that plaintiff who promised to come back did not return to Sub-Registrar Office to execute the sale deed. DW.1 except baldly stating that on the appointed day for registration, plaintiff taken away the original agreement of sale and fair copy of draft sale deed has not stated the date fixed for registration of the sale deed of the suit property.
20. 3rd defendant in para No.8 of his written statement has stated that despite plaintiff received notice issued by his wife and daughter( defendants 4 and 5) to appear before the concerned Sub-Registrar for registration of the sale deed she failed to appear to execute the sale deed. Therefore, the sale deed could not have been made. 3rd defendant has not stated on which date, defendants 3 and 4 issued notice to plaintiff and which date was fixed for the registration of sale deed. 24
OS.26041/2007
21. Defendants 4 and 5 in para No.19 of the written statement, have reiterated the facts stated by DW.1 in para No.6 of his examination-in-chief. DWs 4 and 5 in their written statement, have not stated the date fixed for registration of sale deed and on which day, they handed over the original agreement of sale and fair copy of draft to plaintiff for verification. Defendants 4 and 5 in para No.19 of the written statement, contend that plaintiff taken away the original agreement of sale and the sale deed to show the same to her advocate. DW.1 in the examination-in-chief, at para No.6 has stated that plaintiff has taken away the agreement of sale and fair copy of the sale deed to show to her Chartered Accountant. DW.2 in the cross-examination has stated that after completion of Law for one year, she practiced as advocate, thereafter she started taking tuition, documentation and job recruitment. Therefore, DW.2 is an educated lady having legal knowledge. As stated by DW.1 and 2 after preparation of draft of sale deed for 25 OS.26041/2007 registration if the plaintiff requested to give original agreement of sale and draft sale deed to show to her advocate or Chartered Accountant for verification, the copy of the agreement of sale could have been given to her. Admittedly, the alleged agreement of sale dated:
15.2.2005 is not a registered agreement of sale . To prove the contract of plaintiff agreeing to sell the suit property to defendants 4 and 5, except agreement of sale , defendants 4 and 5 would not have any other document. Therefore, no man of common prudent will give a original agreement of sale to the executor for the purpose of verification of the contents of agreement of sale and draft sale deed.
22. DW.1 in examination-in-chief in para No.6 has stated that believing the version of plaintiff and deposing faith and trust on her, a fair copy of sale deed and the original agreement of sale dated: 15.2.2005 were given to plaintiff to show the same to Chartered Accountant. Defendants 3 to 5 have produced Ex.D.15, the fair sale 26 OS.26041/2007 deed dated:2.12.2005 drafted by DW.5 Mr. Syed Niyamathulla G, Advocate. The fact that defendants 3 to 5 have produced the original fair draft sale deed would falsify their contention that they gave the fair draft sale deed to the plaintiff for getting clarification or verification of contents through her advocate or CharteredAccountant.
23. Defendants 3 to 5 have produced Ex.D. 1 legal notice dated: 23.10.2006. Para No.7 and 8 of Ex.D. 1 notice reads thus:
7. My clients regret that despite your assurance to execute the Deed of Absolute Sale against payment of the Balance Sale consideration and despite they furnishing you a copy of the DEMAND DRAFT obtained by them in your name toward payment of the Balance Sale consideration, you had been postponing to execute the Absolute Sale Deed on one pretext or the other. My Clients further represents me that against their making several demands, you finally agreed to execute the Absolute Sale Deed on 01.12.2005. Reposing full faith and confidence in you, my clients obtained 2(two) DEMAND DRAFTS on 1.12.2005, in the name of the Sub-Registrar, Gandhinagar, Bangalore towards payment of Stamp duty and Registration charges, and after drafting the Absolute Sale deed, 27 OS.26041/2007 they were waiting for you in the office of the Sub-Registrar, Gandhinagar, Bangalore so that you will come and execute the Absolute Sale deed, against receipt of Balance Sale consideration,. My client furtehr represents me that for the reasons best known to you, you did not turn up to execute the Absolute Sale deed on 01.12.2005.
8. My client further represents me that thereafter they approached you and asked the reason for your absence for not keeping present before the Sub-Registrar for registration of the Absolute Sale deed and that you represented to them that since you were not keeping well you could not appear. Thereafter the other reasons furnished for dragging to execute the Sale deed were your brother has expired and thereby unless you observe all obsequies you will not do it and thereafter you represented that there is a marriage in the family and again thereafter it was represented that you are suffering from high BP and later you represented that you had obtained a injury in your head due to a fall. Of late you have not left a single stone unturned in torturing and continuously harassing my innocent client by making false promises to execute the proposed sale deed. Thus, you have committed an offence of criminal breach of trust. My clients have reasonably learnt from reliable sources that you are making efforts to vacate the premises now under your occupation and disappear from Bangalore.28
OS.26041/2007
24. In Ex.D. 1 notice defendants 4 and 5 have stated that on 1.12.2005 they were ready with demand draft for the payment of balance sale consideration of Rs.60,000/-, cash of Rs. 40,000/- and also they took demand drafts for purchasing of stamp paper and payment of registration fee, but, plaintiff did not come to the Sub-Registrar Office to register the sale deed. Further in Ex.D. 1 it is stated that for registration of sale deed plaintiff gained time by stating that her brother was expired, until all obsequies were over she cannot execute the sale deed. In the notice it is stated that plaintiff gained time by stating that there is marriage in her family and also on the health ground. In Ex.D. 1 notice dated: 23.10.2006, defendants 4 and 5 have not stated that on the date fixed for registration of the sale deed. Plaintiff came to the Sub-Registrar Office and taken away the original agreement of sale on the guise of showing the same to her advocate.
29
OS.26041/2007
25. Admittedly, defendants 4 and 5 filed PCR in 1237/2007 against plaintiff for the offences punishable u/s.406,419 and 420 of IPC. On presentation of the said complaint, the Ld. Magistrate referred it to SHO of J.C.Nagar police station u/s 156(3) of Cr.PC and on the basis of the said reference, the SHO of J.C.Nagar Police station registered FIR in Cr.No.45/2007. Plaintiff has produced the true copy of the said complaint and it is marked at Ex.P. 32 and the true copy of FIR in Cr.No.45/2007 is marked at Ex.P. 31. Defendants 4 and 5 have also produced the certified copy of complaint in PCR No.1237/2007 and it is marked at Ex.D. 17. In Ex.D. 17( Ex.P. 32) complaint, in para No.6 and 7, defendants 4 and 5 reiterated the facts stated by them in para No.7 and 8 of Ex.D. 1 notice. DW.5 Syed Niyamathulla is the author of Ex.D. 1 notice dated:
23.10.2006. DW.5 in the examination-in-chief in para No.4 has stated that on 02.12.2005 he and defendants 4 and 5 were present in the Sub-Registrar Office at 30 OS.26041/2007 Gandhinagar along with demand drafts for purchasing stamp paper and payment of registration fee. Ex.D. 15 draft sale deed was also ready for the purpose of registration of sale deed. Plaintiff came to Sub-Registrar office and requested to give original agreement of sale to get clarification from Chartered Accountant. He stated that plaintiff went away by taking original agreement of sale stating that she will return, but upto 2.00pm she did not turn-up. Therefore, he left the Sub-Registrar office.
PW.5 who is the author of Ex.D. 1 notice dated:
23.10.2006 has not stated regarding the events alleged to have been occurred on 2.12.2005. Further DW.5 in his examination-in-chief has not stated the events alleged to have been occurred on 1.12.2005 stated in Ex.D. 1 notice. As stated by DWs2 and 5 if on 2.12.2005, they were waiting in the Sub-Registrar Office along with defendants 3 and 4, plaintiff came to the Sub-Registrar Office and taken away the original agreement of sale on the guise of showing the same to her Advocate they could 31 OS.26041/2007 have stated the said important fact in Ex.D. 1 legal notice dated: 23.10.2006.
26. Defendant No.5 who was examined as DW.2 inpara No.14 of her examination-in-chief in without stating the date has stated that she and her advocate were present in the Sub-Registrar office along with demand drafts for purchasing of stamp paper and payment of registration fee along with draft of sale deed, plaintiff came to the Sub-Registrar office and taken away the original agreement of sale and draft copy of the sale deed by stating that it is required to show to her advocate. She stated that she did not suspect plaintiff, therefore, she handed over the original agreement of sale to her. She stated that plaintiff taken away original agreement of sale by stating that she will come back, but she did not turn-up. DW.2 has stated that thereafter, plaintiff was avoiding to meet her, therefore, she surrendered the demand drafts and taken amount. DW.2 in the cross-examination has stated that in the month of 32 OS.26041/2007 December-2005 by taking demand drafts for purchasing stamp paper and by preparing draft of sale deed, she was waiting for plaintiff to register the sale deed, but, the plaintiff did not come to the Sub-Registrar Office to execute the sale deed. From the facts stated by DWs2 and 5, one thing is very clear that according to them on one day they went to Sub-Registrar office along with demand drafts to purchase stamp paper and to pay registration fee and also ready with draft for registration of sale deed of the suit property. In other words, it is not the statement of DWs 2 and 5 that on 2 days, they went to Sub-Registrar Office for the purpose of registration of sale deed. When such is the case, on which day they went to Sub-Registrar Office for the purpose of registration of sale deed is a mute point. In Ex.D. 1 notice, they stated that they went to Sub-Registrar Office on 1.12.2005. If the said statement is believed, Ex.D.15 draft sale deed which was prepared on 2.12.2005 was not with them on 1.12.2005. As stated by DW.5, if he 33 OS.26041/2007 and defendants 3 to 5 went to Sub-Registrar office on 2.12.2005, the said testimony would falsify the facts stated in Ex.D. 1 notice and Ex.D. 17 complaint that on 1.12.2005 defendants 4 and 5 were waiting in the Sub-
Registrar office for registration of sale deed of the suit property. From the facts stated by DW.2 and 5 and the contents of Ex.D. 1 legal notice and Ex.P. 17 complaint, two stories would emerge. In one story, it is stated that on the date fixed for registration of sale deed, when DWs2 and 5 were waiting in the Sub-Registrar Office along with Ex.D. 15 draft sale deed, plaintiff did not come to the Sub-Registrar office to execute the sale deed. Another story is that on the date fixed for registration of sale deed when DW.2 and 5 along with defendants 3 and 4 were waiting in Sub-Registrar Office plaintiff came, received original agreement of sale and draft sale deed from defendants 4 and 5 on the guise of showing to her advocate and went away.
34
OS.26041/2007
27. Defendant No.3 who was examined as DW.1 in the cross-examination at page No.11 has stated that plaintiff executed agreement of sale to sell the suit property for a sum of Rs. 6,00,000/-. Out of Rs.6,00,000/- Rs. 5,50,000/- was paid to plaintiff. In the cross-examination at page No.13, DW.1 has stated that he do not remember on which date, plaintiff taken away the original agreement of sale . But, according to him, plaintiff taken away the said agreement of sale in the month of March-2007. This is a new story which is totally inconsistent to the above stated 2 stories which emerged from the evidence of DW.2 and 5 and the recitals of Ex.D. 1 and Ex.D. 17.
28. It is needless to say that an advocate in an mouth piece of his client and on the basis of instructions given by his client he will put suggestion to witness of opposite party. In the cross examination of PW.1 at page No.19 and 20 the Ld. Counsel for defendants 3 to 5 made the following suggestions:
35
OS.26041/2007 ದಾವಾ ಸ್ವತ್ತ ನ್ನು ಮಾರಾಟ ಮಾಡುವ ಸಲುವಾಗಿ ವಾದಿಯಾದ ನಾನು ದಿನಾಂಕವನ್ನು ಕೂ ಡ ನಿಗದಿಪಡಿಸಿದ್ದೆ ನು ಎನ್ನುವು ದು ಸರಿಯಲ್ಲ . ದಾವಾ ಸ್ವತ್ತಿನ ಕು ರಿತು ಶುದ್ಧ ಖರೀದಿ ಪತ್ರ ಬರೆದುಕೊ ಡಲು ನಾನು ಮೇರಿ ರಾಜೇಶ್ವರಿ ಮತ್ತು ತಾರಾ ಸೋಫಿಯೂ ಇವರಿಗೆ ಒಪ್ಪಿಕೊ ಡಿದ್ದೆ ನು ಎನ್ನುವು ವು ಸರಿಯಲ್ಲ. ಸದರಿ ದಾರಣಕ್ಕಾ ಗಿ ಮೇರಿ ರಾಜೇಶ್ವರಿ ಮತ್ತು ತಾರಾ ಸೋಫಿಯಾ ಇವರು ಡ್ರಾ ಫ್ಟ ಸೇಲ್ ಡೀಡ್ಅಸಲು ಖರೀದಿ ಪತ್ರ ಮತ್ತು ಹಣ ಪಾವತಿಗಾಗಿ ಚೆಕ್ಗಳನ್ನು ತೆಗೆದುಕೊಂಡು ನನ್ನ ಹತ್ತಿರ ಖರೀದಿ ಪತ್ರ ದಾವಾ ಸ್ವತ್ತಿನ ಕು ರಿತು ಮಾಡಿಕೊ ಡಬೇಕೆಂದು ಹೇ ಳಿ ನಮ್ಮ ಮನೆಗೆ ಬಂದಿದ್ದರು ಎನ್ನುವು ವು ಸರಿಯಲ್ಲ . ಅವರು ನಮ್ಮ ಮನೆಗೆ ಬಂದಾಗ ನಮ್ಮ ಮಧ್ಯೆ ದಾವಾ ಸ್ವತ್ತಿನ ಕು ರಿತು ಮೊದಲು ಉಂಟಾದಂತಹ ಅಸಲು ಖರೀದಿ ಕರಾರು ಪತ್ರ ನನ್ನ ಹತ್ತಿರವೇ ಇಟ್ಟುಕೊಂಡನು ಮತ್ತು ಖರೀದಿ ಪತ್ರ ಬರೆದುಕೊ ಡುತ್ತೇ ನೆ ಎಂದು ಹೇ ಳಿದೆನು ಎನ್ನುವು ವು ಸರಿಯಲ್ಲ . ಆ ಪ್ರಕಾರ ನಾನು ಅವರಿಗೆ ಒಪ್ಪಿ ಕೊಂಡಂತೆ ಖರೀದಿ ಪತ್ರ ಬರೆದುಕೊ ಡಲು ಮುಂದೆ ಬರಲಿಲ್ಲ ಎನ್ನುವು ವು ಸರಿಯಲ್ಲ.
29. The above suggestions to PW.1 creates yet another story of giving original agreement of sale to plaintiff in her house.
30. A perusal of documentary evidence available on record would show that regarding agreement of sale dated: 15.02.2005, the first notice given by defendants 4 and 5 is Ex.D. 1. In Ex.P. 32( Ex.D. 17) complaint, in para No.8, defendants 4 and 5 have stated that on 23.10.2006 they issued legal notice to plaintiff through RPAD and also under UCP to execute sale deed of suit property as 36 OS.26041/2007 per the terms of agreement of sale dated: 15.02.2005. For the reasons best known, defendants 4 and 5 have not produced the said legal notice. Along with the documents submitted by defendants 4 and 5, the photo copy of the complaint dated: 12.12.2006 alleged to have been given by defendants 4 and 5 against plaintiff to the SHO of J.C.Nagar Police station is available. The said complaint consists of 3 pages. In the last page there is an endorsement to the effect that the SHO has received the said complaint on 26.12.2006. For the reasons best known, defendants 4 and 5 have not produced the certified copy or true copy of the said complaint. Therefore, defendants 3 to 5 have withheld the above 2 important documents made relating to the alleged agreement of sale dated: 15.2.2005. In Ex.P. 32 ( Ex.D.
17) complaint at page No.8, it is stated that after receipt of legal notice dated: 23.10.2006, on 3.12.2006 plaintiff approached the defendants 4 and 5 and informed that she is ready to execute sale deed of the suit property in 37 OS.26041/2007 their favour. On that day, plaintiff requested defendants 4 and 5 to give original sale agreement dated: 15.2.2005 and the copy of the proposed sale deed ie., Ex.D. 15 to show to her Auditor to enquire regarding mode of receipt of sale consideration for income tax purpose. Believing the words of plaintiff , defendants 4 and 5 handed over the original agreement of sale dated: 15.2.2005 and the proposed sale deed dated: 2.12.2005 ( Ex.D. 15) to her. Further in para No.8 of the said complaint it is stated that plaintiff after receiving the above 2 documents, did not turn-up and she gained time. Finally on 12.10.2006 she told that she will not register the sale deed and she will not return the original agreement of sale . In the said complaint defendants 4 and 5 have not stated about the incident alleged to have been occurred on 2.12.2005 stated by DW.5. If the facts stated by defendants 4 and 5 in para No.8 of the complaint is admitted it will give aN indication that on 3.12.2006, they were having original agreement of sale with them. This would falsify the 38 OS.26041/2007 contentions of defendants 4 and 5 in para No.19 of the written statement and the testimony of DW.5 that on 2.12.2005 plaintiff came to the Sub-Registrar office and received original agreement of sale and draft sale deed ie., Ex.D. 15 to show to her advocate. As contended by defendants 4 and 5 if the plaintiff would have taken away the original draft sale deed and thereafter, she did not return it, then there is no explanation from defendants 3 to 5 when and how they got they got Ex.D. 15 the original draft sale deed dated: 2.12.2005 produced by them to the court.
31. In the instant case, the Ld. Counsel for defendants 3 to 5 has filed detailed written arguments . In the written arguments , he has not given any explanation regarding the above inconsistencies in the evidence of DWs1,2 and 5 regarding the date and place of defendants 4 and 5 handing over the original agreement of sale to the plaintiff.
39
OS.26041/2007
32. The Ld. Counsel for the defendants 3 to 5 has strenuously contended that PW.1 in the cross-examination has admitted about making of agreement of sale dated:
15.2.2005. The portion of cross-examination of PW.1upon which the Ld. Counsel for defendants 3 to 5 is placing reliance reads thus:
ದಿಃ 15-02-2005 ರಂದು ಉಂಟಾದ ಅಸಲು ಖರೀದಿ ಕರಾರು ಪತ್ರದ ಕು ರಿತು ನಿ.ಪಿ.32 ರಲ್ಲಿ ನಮೂದಾಗಿದೆ ಎನ್ನುವು ದು ನಿಜ.
33. Plaintiff has produced Ex.P. 32 copy of the complaint and Ex.P. 31 FIR to substantiate that defendants 3 to 5 filed false complaint against her stating that she executed agreement of sale of suit property in favour of defendants 4 and 5 and the police after conducting investigation filed 'B' report. In Ex.P. 32 ( Ex.D. 17) complaint defendants 4 and 5 have stated about agreement of sale dated: 15.2.2005. Therefore, the plaintiff cannot say that in the said complaint defendants 4 and 5 have not stated about the said agreement. In view of defendants 4 and 5 referred to about agreement of sale dated: 15.02.2005, in the 40 OS.26041/2007 complaint, plaintiff has stated that defendants 4 and 5 have stated about the said agreement in Ex.P. 32 complaint. The said statement cannot be said to be an admission of plaintiff regarding execution of agreement of sale .
34. The Ld. Counsel for defendants 3 to 5 contend that in the cross-examination of DW.2 and 5 the plaintiff by putting questions elicited regarding making of agreement of sale dated: 15.2.2005. The said statements elicited in the cross-examination would support the case of defendants 3 to 5 that plaintiff has executed agreement of sale dated: 15.2.2005 agreeing to sell the suit property to defendants 4 and 5.
35. It is settled principle of law that the evidence of a witness is to be considered in whole. In the cross- examination of DW.1, 2 and 5 the counsel for the plaintiff has made a suggestion that plaintiff has not executed any agreement in favour of defendants 3 to 5 agreeing to sell the suit property. In the cross-examination of 41 OS.26041/2007 Dws.1,2 and 5 to test their veracity they were questioned regarding when the agreement of sale was made, who were present at the time of agreement etc., Therefore, the questions posed to DWs 1,2 and 5 regarding execution of agreement of sale to test their veracity cannot be considered as admissions regarding proof of agreement of sale. In view of the above, I hold that judgment of Hon'ble High Court of Karnataka reported in ILR 2008 KAR.3500( M. Ethiraj Vs Smt. Farida Khanum) regarding admission and the value of stray sentence elicited in the cross-examination cited by counsel for defendants 3 to 5 is not applicable to the evidence available on record.
36. In the instant case, defendants 3 to 5 have unequivocally admitted the plaintiff's title over the suit property. Admitting the plaintiff's title they contend that plaintiff executed agreement of sale dated: 15.2.2005 in favour of defendants 4 and 5 agreeing to sell the suit property for a sum of Rs.5,50.000/-. Plaintiff denied the 42 OS.26041/2007 execution of said agreement of sale . Therefore, the burden is on the defendants 3 to 5 to prove the execution of agreement of sale by plaintiff. The Agreement of sale alleged to have been executed by plaintiff has not seen the light of the day. In view of defendants 3 to 5 have not produced the said agreement of sale they contend that reposing faith on plaintiff, they given the said agreement of sale to her to show to her Chartered Accountant or advocate to get his opinion regarding receiving consideration at the time of execution of sale deed. According to the defendants 4 and 5, before the alleged date fixed for registration of sale deed , they paid 80% of the consideration amount to plaintiff. According to them, on the date of registration of the sale deed, they have to pay balance sale consideration of Rs.1,00,000/- only. The say of defendants 3 to 5 that plaintiff requested them to give original agreement of sale to her to show to her advocate or Chartered Accountant to get clarification regarding receiving Rs.1,00,000/- for 43 OS.26041/2007 income tax purpose appears to be very strange. Without showing agreement of sale or by showing its copy , plaintiff can get that clarification from her Chartered Accountant.
37. In para No.6 and 7 of Ex.D. 1 notice, defendants 4 and 5 have made allegation against the plaintiff that she was gaining time on one or the other ground to execute sale deed . No man of common prudence will give the original unregistered agreement of sale the only document made to prove the sale transaction to the executant who is not willing to perform his part of contract as per the said agreement of sale . Therefore, as I have already stated above, the inconsistent stories put-forth by the defendants 3 to 5 along with their previous advocate DW.5 regarding handing over of original agreement of sale to the plaintiff appears to be highly improbable.
38. Defendant No.5 is an Law graduate and she practiced Law for one year. As stated by her if on the 44 OS.26041/2007 date fixed for registration of sale deed if the plaintiff taken away the original agreement of sale on the guise of showing it to her Chartered Accountant or Advocate to get clarification by giving assurance that she will come back within a short time but did not return till the closing hours of Sub-Registrar Office , no man of common prudent will keep quite . Atleast a complaint could have been given to the police on the same day to take necessary action against the plaintiff. There is no explanation from defendants 3 to 5 why they did not give complaint to the police against plaintiff alleging that she taken away the original agreement of sale , the only document which they were having to prove the sale transaction. In view of my aforesaid findings , I hold that there is no cogent and convincing evidence on record to prove that on 15.02.2005 plaintiff executed agreement of sale in favour of defendants 4 and 5 agreeing to sell the suit property for a sum of Rs. 5,50,000/-. In view of defendants 3 to 5 failed to prove the execution of 45 OS.26041/2007 agreement of sale , their inconsistent stories of plaintiff taken away the agreement of sale to show to her advocate cannot be believed.
39. Defendants 3 to 5 have produced Ex.D. 7 and 8 pass-books, Ex.D. 20 and 21 statement of bank accounts and also examined DW.3 and 4, the Managers of Banks to prove the payments regarding agreement of sale . Plaintiff has stated that she know 3 rd defendant and they both are social workers. To construct building in the suit property, she took financial assistance of Rs.3,00,000/- from 3rd defendant and also his assistance in purchasing construction materials.
40. Defendants 3 to 5 by putting suggestion to PW.1 in the cross-examination at page No.16 admitted that plaintiff and defendant are social workers therefore, they are known to each other. PW.1 has stated that he received financial assistance from defendant No.3 for construction of building, but, she do not know from whose account defendant No.3 transferred money to her 46 OS.26041/2007 account. PW.1 has stated that whatever financial assistance she received from 3rd defendant, she returned the same to 3rd defendant in piecemeal. Whether plaintiff returned the said amount to defendant No.3 in piecemeal or not is not a point for consideration in the instant case. In view of my finding that defendants 3 to 5 failed to prove that plaintiff executed agreement of sale dated:
15.02.2005 in favour of defendants 4 and 5 agreeing to sell the suit property for a sum of Rs.5,50,000/-, their contention that in respect of said agreement of sale they paid Rs.4,50,000/- to the plaintiff cannot be accepted.
41. Defendants 4 and 5 contend that they are in possession of the suit property in part performance of agreement of sale dated: 15.2.2005. In view of defendants 3 to 5 failed to prove the execution of agreement of sale dated: 15.2.2005 their contention of taking possession in part performance of agreement of sale would fall on the ground.
47
OS.26041/2007
42. It is settled principle of law that possession follows title. Unless contrary is proved, the owner is deemed to be in possession of the property. Defendants 3 to 5 admitting plaintiffs possession over the suit property on 15.2.2005 contend that on that day plaintiff handed over the possession to defendants 4 and 5 under agreement of sale . In para No.2 of Ex.D. 1 notice, defendants 4 and 5 have stated about making of agreement of sale dated: 15.02.2005. In para No.3, they stated that in view of Government of Karnataka banned registration of properties having no conversion orders,there is legal impediment for registration of sale deed of suit property. In the said para they also stated regarding payment of additional amount of Rs. 1,50,000/- to the plaintiff on 31.5.2005. In para No.4 of Ex.D. 1 notice, defendants 4 and 5 have stated that plaintiff after receipt of Rs.3,00,000/- from them, handed over the possession of the suit property. Admittedly, defendants 4 and 5 not paid Rs.3,00,000/- to plaintiff on 48 OS.26041/2007 15.02.2005. Therefore, having regard to their contention that after they paid Rs.3,00,000/- to plaintiff she handed over the possession of the suit property would give an indication that on 15.02.2005 plaintiff not handed over the possession of the suit property to them. Therefore, the recitals of Ex.D. 1 would falsify the contention of defendants 4 and 5 that on 15.2.2005, plaintiff handed over the possession of suit property to them.
43. DW.1 in the cross-examination at page No.8 has stated that the day on which he paid Rs.1,50,000/- to plaintiff, plaintiff handed over the possession of the suit property to him. Again he stated that he do not remember on which day, he took the possession of the suit property. Further he stated that plaintiff handed over the possession of suit property to him orally and regarding handing over of possession, no document was made and it was also not mentioned in agreement of sale. The above statements of DW.1 in the cross- examination would falsify the contention of defendants 3 49 OS.26041/2007 to 5 that as part performance of agreement of sale dated:
15.2.2005 they were put in possession of the suit property.
44. Defendants have produced Ex.D. 4 to 10 and 19 bank challans regarding taking DD to purchase stamp paper and to bear registration charges. In view of they failed to prove the agreement of sale , the said documents are of no assistance to them. Defendants have produced Ex.D. 11, 12 and 18 tax paid receipts. As perusal of the same would show that tax was paid in the name of plaintiff. Therefore, the said documents are not helpful to defendants 3 to 5 to prove their contention that as intending purchasers they are in possession of the suit property. In view of my aforesaid findings I hold that defendants 4 and 5 miserably failed to prove that plaintiff executed agreement of sale dated: 15.02.2005 agreeing to sell the suit property to them for a sum of Rs. 5,50,000/-,they paid a sum of Rs. 4,00,000/- to her towards part of the sale consideration and in part 50 OS.26041/2007 performance of the said agreement of sale , plaintiff handed over the possession of the suit property to them on 15.02.2005 and they are in possession of the said property as intending purchasers. In view of the above, I answer Additional Issues No. 1 to 4 in the Negative. 45. ADDL.ISSUE NO.8:- Defendants 4 and 5 contend that the suit is barred by law of limitation. In view of the said contention, additional issue was framed on 15.07.2021.
46. The Ld. Counsel for the defendants 3 to 5 has strenuously contended that since 15.2.2005, defendants 4 and 5 have been in possession of the suit property. In the year 2019, plaintiff filed the application to implead defendants 4 and 5. The said application was allowed on 18.12.2019. On 21.12.2019, plaintiff carried out agreement. Thus, defendants 4 and 5 were made as parties to the suit 14 years 10 months after plaintiff lost possession over the suit property. He submits that in a suit for recovery of possession of immovable property, 51 OS.26041/2007 plaintiff has to prove her possession 12 years prior to the date of filing of the suit. In the instant case, from the evidence on record would show that plaintiff sought the relief of possession against defendants 4 and 5 14 years after they took possession of the suit property. Therefore, the suit is hopelessly barred by limitation. In support of his arguments, he placed reliance on the following judgments.
1. AIR 2006 Chattisgarah 73 ( Mst. Nirashi Bai Vs Ramlal & Ors)
2. AIR 2004 SC 4261 ( Ramaiah Vs N. Narayana Reddy(dead) by LRs)
47. In the case of Mst. Nirashi Bai Vs Ramlal & Ors. Cited supra finding on the question of limitation is in para No. 12 and 13 and they read thus:
12. In the instant case, apparently the suit does not fall within the ambit of Article 64 of the Act, as plaintiffs/respondents Nos. 1 and 2 failed to prove their dispossession within 12 years from the date of filing of the suit. So far as Article 65 of the Act is concerned, Hon'ble the Apex Court in Pataria and Ors. v. Mst. Chitia and Ors. reported in 1994 (1) VIBHA 224, has 52 OS.26041/2007 observed in Para 11 which reads as below:
11. It is thus, clear that a suit for possession of immovable property or in the interest therein being based on title and not merely possessory title is governed by Article 65 of the new Limitation Act. Once the title of the plaintiff is proved, a suit cannot be defeated unless and until the defendant has pleaded and proved acquisition of title in him by adverse possession. A mere failure on the part of the plaintiff in alleging and proving his possession over the suit property at any time within the period of 12 years calculated back from the date of the suit would be immaterial and irrelevant.
13. In the instant case, defendant No. 1/appellant in her written statement no where pleaded that she acquired right over the suit land by adverse possession. Therefore, the suit for possession of the suit land based on title is not barred by time. Accordingly, question No. 1 is answered.
48. Plaintiff (PW.1) has stated that she by taking financial assistance from defendant No.3 constructed building in the suit property. Defendants 3 to 5 contend that as intending purchasers defendants 4 and 5 put up construction of building existing in the suit property. Defendants 3 to 5 failed to prove that plaintiff executed 53 OS.26041/2007 agreement of sale dated: 15.02.2005 agreeing to sell the suit property to them, in part performance, the possession of property was handed over and also permitted them to put up construction. Except oral statement of DWs1 and 2 there is no iota of material to prove that defendants 3 to 5 put up construction of building in the suit property. When such is the case, there is no reason to disbelieve the statement of PW.1 that as a owner of suit property she constructed building existing therein.
49. Plaintiff contends that in the month of December-20017 defendants 1 and 2 took the possession of ground and 1st floor of the suit property. In the evidence she stated that during the pendency of the suit, defendants 3 to 5 took illegal possession of the 2 nd floor of the suit property. DW.1 in the cross-examination at page No.8 has stated that he is in possession of ground, 1 st and 2nd floor of the suit property. Further he stated that he has given the suit property on rent and collecting rent from tenants. In the cross-examination at page No.9, he 54 OS.26041/2007 stated that her daughter, the 5 th defendant is in possession of ground floor and the 2 nd and 3rd floor was given on rent. He stated that he is getting rents of Rs. 12,000/- per month from 2nd and 3rd floor of the building existing in the suit property. DW.2 in the cross- examination at page No.11 has stated that the ground floor is in possession of tenant, 1st and 2nd floor are in possession of herself and her parents. From the facts stated by DW.1 and 2 would that they by contending that defendants 4 and 5 as intending purchasers are having right to have possession over the suit property given different floors of suit building to different persons on different dates. Defendants 3 to 5 failed to prove that as intending purchasers defendants 4 and 5 are in possession of the suit property from 15.2.2005. They have not put-forth any other kind of right to have possession over the suit property. When such is the case, their possession over the suit property is illegal and unauthorised. When they have no manner of any right 55 OS.26041/2007 over the suit property their possession over the suit property is illegal and the possession of their alleged tenants or other persons inducted by them is also illegal. Defendants 3 to 5 though contend that they given the suit property on rent have not stated the names of tenants. They have also not produced the rent agreement or any other document regarding giving the suit property on rent. From the evidence of DWs 1 and 2, it is clear that on different dates they inducting different persons in different floors.
50. Plaintiff has stated that at the time of filing the suit, defendants 1 and 2 illegally occupied ground and 1 st floor of the building existing in the suit property. After service of summons, they did not appear before the court. Defendants 3 to 5 contend that at the time of filing the suit they are in possession of the suit property and they inducted tenants. When defendants 3 to 5 who inducted tenants in the suit property have no documents to prove to whom they inducted, when inducted , then plaintiff 56 OS.26041/2007 who did not induct them in the suit property obviously would not have any document to prove that at the time of filing the suit, defendants 1 and 2 were in possession of ground and 1st floors of suit property. Therefore, in view of defendants 1 and 2 not appeared before the court and contested the suit and defendants 3 to 5 contend that they inducted tenants in the suit property, in view of my finding that defendants 3 to 5 have no manner of any right over the suit property, their possession and the possession of the persons inducted by them in the suit property is illegal. When such is the case, from the material on record would show that at the time of filing the instant suit, defendants 3, his wife and daughter viz defendants 4 and 5 and for the persons inducted by them were in unauthorised possession of the suit property.
51. In the instant case, defendants 3 to 5 admitting the plaintiff's title over the suit property contend that defendants 4 and 5 are in possession of the suit property as intending purchasers. They failed to prove the said 57 OS.26041/2007 contention. In the instant case, it is not the contention of defendants 3 to 5 that they are in possession of the suit property unauthorisedly to the knowledge of plaintiff with hostile intention to acquire title by adverse possession. When such is the case, in view of plaintiff filed the instant suit for recovery of possession on the basis of title, Article 65 of the Limitation Act would apply and in view of defendants 3 to 5 have not put-forth the defence of adverse possession, the instant suit cannot be said to be barred by limitation on the ground that plaintiff failed to prove her possession 12 years prior to impleading defendants 4 and 5 as parties to the suit. In support of my view in addition to placing reliance on the findings given in para No.12 and 13 in the case of Mst. Nirashi Bai Vs Ramlal & Ors cited supra I place reliance on the judgment of Hon'ble Supreme Court of India in the case of Indira Vs Armugam and another reported in ILR 1998 Kar. 1422. In the said judgment, the Hon'ble Supreme Court of India has held as under:
58
OS.26041/2007 In a suit for possession of immovable property based on title, once the title is established, unless the defendant proves adverse possession the plaintiff cannot be non-suited.
52. In view of the above, I hold that the judgment in the case of Mst. Nirashi Bai Vs Ramlal & Ors is of no assistance to defendants 4 and 5 to prove that the instant suit is barred by limitation. On the other hand it supports the case of the plaintiff that the suit is in time.
53. I went through the judgment of Hon'ble Supreme Court of India in the case of Ramaiah Vs N. Narayana Reddy. In the said judgment, plaintiff and defendant both contend that as owners they are in possession of the suit property. Both are having sale deeds in their favour. Defendant in addition to his contention that as owner he is in possession of the suit property also put-forth the defence that in the year 1971 he ousted the plaintiff from the suit property. In view of both the parties put forth their claim of title and 59 OS.26041/2007 defendant put forth the defence of ouster, the Hon'ble Supreme Court of India has held that in view of plaintiff failed to prove the possession over the suit property 12 years prior to the date of institution of suit, the suit for possession is barred by limitation. In the said case, Hon'ble Supreme Court of India has opined that whether Article 64 or 65 of Limitation Act would apply to the case is to be decided on the basis of the facts and circumstances of the case and pleas putforth by the parties. In the instant case, defendants 3 to 5 admitting the plaintiff's title over the suit property contend that she voluntarily handed over the possession to them under agreement of sale dated: 15.2.2005 which they failed to prove. Except the said contention, defendants 3 to 5 have not put-forth any other contention. Therefore, having regard to the contentions taken in the instant suit, Article 65 of Limitation Act would apply and in view of defendants not put-forth the plea of adverse possession, the instant suit cannot be said to be barred by limitation. 60
OS.26041/2007 In view of the above, I hold that the judgment in the case of Ramaiah cited supra is not applicable to facts of the case on hand. In view of my aforesaid finding, I hold that defendants 3 to 5 failed to prove that the suit is barred by limitation. In view of the above, I answer Additional Issue No.8 in the Negative.
54. ADDITIONAL ISSUES 5 TO 7:- Defendants 4 and 5 by way of counter claim sought the relief of specific performance of agreement of sale dated:
15.2.2005. Plaintiff filed I.A.No. 1/21 for rejection of counter claim inter alia on the count of limitation. Vide order dated: 15.3.20201, this court has allowed the said application and counter claim of defendants 4 and 5 was rejected on the count of limitation. Defendants 4 and 5 have not challenged the said order, hence, it reached finality. Therefore, in view of counter claim of defendants 4 and 5 was rejected, additional issues 5 to 7 would not survive for consideration. Accordingly, they answered as would not survive for consideration. 61
OS.26041/2007
55. ISSUE NO.1: This issue was deleted on 11.08.2011.
56. RECASTED ISSUE NO.2 :- While answering additional issues 1 to 4 and 8 I have opined that defendants 3 to 5 and the persons inducted by them into the suit property are in illegal possession of the said property. The Hon'ble Supreme Court of India in the case of Indira cited supra has held that a suit for possession based on title, once the plaintiff proves the title, unless the defendant proves the adverse possession, plaintiff cannot be non-suited. In the instant case, admittedly, plaintiff is the owner of the suit property. Defendants 3 to 5 have not put-forth the defence of adverse possession or any other kind of right to continue their possession over the suit property. Hence, defendants 3 to 5 and the persons inducted by them in the suit property have no option except to vacate and hand over the vacant possession of the suit property to the plaintiff. 62
OS.26041/2007
57. The Ld. Counsel for the defendants 3 to 5 placing reliance on several judgment has strenuously contended that there is variance between pleadings and proof. Plaintiff failed to prove that at the time of filing the instant suit, defendants 1 and 2 were in unauthorised possession of the suit property. In para No.8 of the plaint, plaintiff contends that one Manjit Singh was in possession of the suit property. Plaintiff failed to prove the said contention. Therefore, she is not entitle for the relief of possession. In support of his arguments, he placed reliance on the following Judgments:
1. AIR 1974 Patna 254(V 61 C 68)[ Janki Missir & Another Vs Dharmaraj Missir & Others )
2. 2003 AIR SCW 1383 ( Bondar Singh & Others Vs Nihal Singh & Others)
3. 2003 AIR SCW 4986( Rajgopal(Dead) by LRs Vs Kishan Gopal and another.
4. AIR 2004 KAR 444( Pennaiah & Others Vs Thippamma) 63 OS.26041/2007
5. AIR 1953 SC 235( Vol.40C.N.56) [ M/s Trojan & Co., Vs RM.M.N. Nagappa Chettiar]
6. AIR 1968 SC 1083 Mrs. Om Prabha Jain Vs Abnash Chand & Anr.)
58. I went through the above cited judgments. There is no quarrel regarding the findings given in the said judgments that any amount of evidence led without pleadings has no value in the eye of law and the court cannot countenance it. Without pleadings, the parties cannot put-forth a new case at the time of evidence. When there is variance between pleadings and proof the evidence contrary to the pleadings cannot be looked into.
59. In the instant case, it is the specific case of the plaintiff that in the month of December 2006, defendants 1 and 2 illegally taken the possession of the 1 st and 2nd floor of the suit property. PW.1 in her evidence has stated that during the pendency of the suit, defendants 3 to 5 illegally took the possession of the 2nd floor of the suit property. Defendants 3 to 5 contend that at the time of 64 OS.26041/2007 filing the suit, they and their tenants are in possession of the suit property. Defendants 1 and 2 after service of summons, have not appeared before the court. Therefore, having regard to the contention taken by defendants 3 to 5 and in view of my finding that they failed to prove any kind of right over the suit property, their possession and the possession of persons inducted by them in the suit property is illegal and unauthorised. Therefore, having regard to the contention taken by defendants 3 to 5 to succeed in the suit, there is no necessity for the plaintiff to prove that in the month of December2006, defendants 1 and 2 illegally occupied the suit property. To get the relief of possession, it is sufficient for the plaintiff to prove that at the time of filing the instant suit or during the pendency of the suit, defendants 3 to 5 and the persons inducted by them are in illegal possession of the suit property. Therefore, I hold that there is no variance between pleadings and proof lead by the plaintiff. At the cost of repetition, I say that it is the case of the 65 OS.26041/2007 plaintiff that she is the owner of the suit property and defendants are in illegal possession of the suit property. Plaintiff proved that defendants 3 to 5 and the persons inducted by them are in illegal possession of the suit property. That is sufficient to grant the relief of possession.
60. The Ld. Counsel for the defendants 4 and 5 has strenuously contended that in a suit for possession, plaintiff has to stand on her own legs, she cannot succeed on the weakness of the defendant's case. He submits that plaintiff failed to prove her case that in the month of December-2006, defendants 1 and 2 unauthorisedly took the possession of the ground and 1 st floor of the suit property. In view of plaintiff failed to prove her case, the onus will not shift on defendants 3 to 5 to substantiate their contention. In support of his arguments, he placed reliance on the following judgments:
1. AIR 1995 Orissa 270( Nirkar Das Vs Gourhari Das & Others) 66 OS.26041/2007
2. ILR 2008 KAR 3500( M. Ethiraj Vs Smt. Farida Khanum)
3. AIR 2009 SC 2966( T.K.Mohammed Abubucker(D) Thr LRs & Ors Vs P.S.M. Ahamed Abdul Khader & Ors,)
4. ILR 2014 KAR 1311(Smt. Sumira Bai Vs P.Siddesh and another)
5. AIR 2011 SC 2344(Rangammal V Kuppuswami & Anr.)
6. AIR 1964 SC 136( A.Raghavamma and Anr Vs Chenchamma & Anr)
7. AIR 1971 Orissa 224 (Dhobani Dei Vs Lingaraj Bhuyan & Ors.)
61. I went through the above cited judgments.
There is no quarrel regarding the ratio laid down in the above cited judgment that plaintiff has to prove her case, independently. Plaintiff would not succeed on the ground of failure of defendant to establish his case and there is also no dispute that unless the plaintiff discharge the initial burden of proving her case, the onus would not shift on the defendant to establish his defence. In the instant case, it is the case of the plaintiff that she is the 67 OS.26041/2007 owner of the suit property. Defendants 3 to 5 admitted the ownership of plaintiff over the suit property. When defendants 3 to 5 admitted plaintiff's ownership over the suit property, as per the judgment of Hon'ble Supreme Court of India in the case of Indira cited supra, to protect their possession, the only defence available to them is adverse possession. In the instant case, defendants 3 to 5 have no put-forth the defence of adverse possession. They contend that they are in possession of the suit property as intending purchasers in part performance of agreement of sale dated: 15.2.2005, but they miserably failed to prove the said contention and in the foregoing paras, I hold that the said contention appears to be false and created story. Therefore, from the evidence on record, it is evident that defendants 3 to 5 are in illegal possession of the suit property. When their possession is illegal, the possession of the persons inducted by them in the suit property is illegal. Therefore, plaintiff proved her case. When such is the case, the contention of 68 OS.26041/2007 defendants 3 to 5 that plaintiff failed to prove her case, therefore, the onus would not shift on them to establish their defence to protect their possession is not sustainable. In view of the above, I hold that plaintiff being the owner of the suit property is entitle to recover the possession of the said property from defendants 3 to 5 and other persons if any inducted by them in the suit property. Accordingly, I answer recasted issue No.2 in the Affirmative.
62. ISSUE NO.3:- Plaintiff claims mesne profits of Rs. 500 per day ie. Rs. 15,000/- per month. DW.1 in the cross-examination at page No.9 has stated that he has given 2 floors of the building existing in the suit property on rent and getting rent of Rs. 12,000/- per month. From the said unequivocal statement of DW.1 on oath, it is clear that the rental value of each floor of the suit property is Rs.6,000/- per month. Therefore, the rental value of 3 floors would comes to Rs.18,000/- per month. Plaintiff claims mesne profits of RS.15,000/- per month. 69
OS.26041/2007 Therefore, having regard to the facts stated by DW.1 regarding rental value of the suit property, the mesne profit claimed by the plaintiff at the rate of 15,000/- per month is reasonable. Defendants 3 to 5 who are in illegal occupation of the suit property and collecting rents from the persons inducted by them into the suit property are liable to pay mesne profits to plaintiff at the rate of Rs.15,000/- per month from the date of the suit till they vacate and hand over the possession of the suit property to her. In view of the above, I answer Issue No.3 in the Affirmative.
63. ISSUE NO.4: plaintiff has sought the relief of perpetual prohibitory injunction restraining the defendants from interfering with her possession and enjoyment of the suit property and entering into the suit property. In view of plaintiff is not in possession of the suit property and claiming possession, she is not entitled for injunction. In view of the above, I hold that plaintiff is not entitle for the relief of perpetual prohibitory 70 OS.26041/2007 injunction. Accordingly, I answer Issue No.4 in the Negative.
64. ISSUE NO.5:- Plaintiff has claimed special damages of Rs.10,000/-. Plaintiff in the examination-in- chief has not stated anything to grant special damages to her. While answering issue No.3 I have held that plaintiff is entitled for mesne profits/damages of Rs. 15,000/- per month. In view of damages is already granted there is no ground to grant special damages. Accordingly, I answer Issue No.5 in the Negative.
65. ISSUE NO.6: Aperusal of valuation slip would show that plaintiff has valued the suit at Rs.. 1,00,000/- and accordingly paid court fee. DWs 1 and 2 in their evidence have not stated anything about the valuation. In the cross-examination of PW.1, nothing has been elicited to prove that valuation made by her is improper and court fee paid is insufficient. The written arguments submitted by defendants 3 to 5 is silent regarding valuation. In view of the above, I hold that having regard 71 OS.26041/2007 to the valuation made by plaintiff, the court fee paid is sufficient. In view of the above, I hold that plaintiff has paid proper court fee. Accordingly I answer Issue No.6 in the Affirmative.
66. ISSUE NO.7:- In view of reasons & findings on above Issues, I pass the following:
ORDER Plaintiff's suit is partly decreed with cost to be paid by defendants 3 to 5.
Defendants 3 to 5 are directed to vacate and handover the vacant possession of the suit property to the plaintiff within a month from this day. On their failure, plaintiff is entitled to recover the possession of the suit property from defendants 3 to 5 and the persons if any inducted by them in the suit property. Defendants 3 to 5 are directed to pay mesne profits of Rs.15,000/- per month to the plaintiff from the date of the 72 OS.26041/2007 suit till they vacate and handover the possession of the suit property to the plaintiff ****** (Dictated to the Judgment-Writer, transcript thereof corrected and then pronounced by me in the open court on this the 6th day of January 2022 ) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 Smt. Susheela Jain @ Susheela Bai LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Sale deed dt: 6.4.1979
Ex.P.2 Khata extract
Ex.P.3 Khata certificate
Ex.P.4 Encumbrance certificate
Ex.P.5 Encumbrance certificate
Ex.P.6 Acknowledgment
Ex.P. 7 Copy of the complaint
Ex.P. 8 &9 Copies of legal notices
Ex.P. 10 to 13 Electricity bills
Ex.P. 14 Water bill
Ex.P. 15 Receipt for having paid water tax
Ex.P. 16to 19 Electricity bills
73
OS.26041/2007
Ex.P. 20 Water bill
Ex.P. 21 Tax receipt
Ex.P. 22 copy of complaint
Ex.P. 23 Acknowledgment
Ex.P. 24&25 Cash bills
Ex.P. 26 to 29 Photographs
Ex.P. 30 CD
Ex.P. 31 Copy of FIR in Cr.No.45/2007
Ex.P. 32 Copy of private complaint
Ex.P. 33 Vakalath
Ex.P. 34 Application
Ex.P. 35 Pass book
LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW1 Mr. J.L.Nathan DW2 Mrs. N.Thara Sofia DW3 Nimmi Shobana DW4 Mohammed Imtiyaz DW5 Mr. Syed Niyamathulla G
LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 Certified copy of legal notice dated:23/10/2006.
Ex.D.2 Returned cover
Ex.D.3 Postal acknowledgment
Ex.D.4 to 6 Bank challans
Ex.D.7&8 Bank pass-books
Ex.D. 9 to 12 Tax paid receipts
Ex.D. 13 & 14 Photographs
Ex.D. 15 Sale deed dt: 02.12.2005
74
OS.26041/2007
Ex.D. 16 Police notice dt:1.4.2007
Ex.D. 17 Copy of private complaint in PCR.No.1237/07
Ex.D. 18 Tax paid receipt
Ex.D. 19 Tax paid challan
Ex.D. 20 Bank statement.
Ex.D. 21& 22 Statement of Account
(MOHAMMED MUJEER ULLA C.G.)
LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)