Bangalore District Court
Smt.H.Sharadamma vs Sri.Sajjad Rahim on 27 April, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL & SESSIONS
JUDGE
AT BANGALORE CITY - CCH No.23.
DATED THIS THE 27th DAY OF APRIL, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.6432/2005
PLAINTIFF/S: Smt.H.Sharadamma,
W/o M.Chandrashekarappa,
Aged about 68 years,
Taluk Office road,
Devanahalli,
Bengaluru rural district.
(By Sr i.DSP, Advocate)
--Vs.---
DEFENDANT/S: 1. Sri.Sajjad Rahim,
S/o S.A.Rahim Saddique,
Aged about 57 years,
No.509, 4th cross, 2nd block
HRDR layout,
Bengaluru - 43.
2. Sri.Nasrulla Rifai,
S/o Syed Mustafa Rifai,
Aged about 40 years,
No.22, 80 feet road,
Cholanayakanahalli,
HMT Layout,
2 O.S.No.6432/2005
Bengaluru - 32.
(By Sri.GLV, STT, Advocates)
Date of institution of suit: 25.08.2005
Nature of suit: Declaration, injunction &
possession
Date of commencement
of recording of evidence: 02.09.2008
Date on which the judgment
was pronounced: 27.04.2016
Duration of the suit: year/s month/s day/s
10 08 02
* * * * *
JUDGMENT
This is a suit filed by the plaintiff for declaration, possession, mandatory injunction, permanent injunction and mesne profits.
2. In nutshell the case of the plaintiff is as under:
That the plaintiff is the absolute owner of the site property bearing no.33/B situated at 80 feet road, 3 O.S.No.6432/2005 Cholanayakanahalli, HMT Layout, Bengaluru - 32, having purchased the same under the registered sale deed dated 16/3/1984 from its previous owner Sri.V.Narayanappa, S/o Venkataswamappa. It is further stated that the original sale deeds being lost, the certified copies of the registered sale deed stands in the name of V.Narayanappa, the vendor of the plaintiff and the sale deed stands in his name as produced before the court.
3. It is further contended that the plaintiff being the resident of Devanahalli, situated away from Bengaluru city and she being a widow and also being patient suffering from Hyper-thyroid and cardiac problems, she could not visit to the suit schedule property oftenly. He further stated that during the middle of 1997 when she visited to the suit schedule property, she was surprised to notice that an illegal construction was come up in the suit schedule property. On enquiry with the occupant it was revealed that he was inducted by somebody to look after the suit schedule property. On appraising the fact that plaintiff is the absolute owner of 4 O.S.No.6432/2005 the suit schedule property and the construction was an illegal construction, the occupant assured to call the person who inducted him and who was away from Bengaluru for settlement of issue and to inform the plaintiff. As there was no information, again during the beginning of 1998, she visited the suit schedule property and the occupant repeated the same thing and did not disclose the identity of the person who inducted him. On demanding the occupant to vacate the suit schedule property he promised that he will call the said person and intimated to her, but no information was received from the said occupant.
4. It is further stated that on subsequent visit by her, the said occupant by one or the other pretext postponing the issue and she was waiting for the settlement of the issue amicably. Later when she visited the suit schedule property on 16/7/2014, it was noticed that the defendant No.2 was attending to repairs. On enquiry defendant No.2 stated that the defendant No.1 was the owner of the suit schedule property. Thereafter she enquired in the office of the 5 O.S.No.6432/2005 Bengaluru Mahanagara Palike and she was shocked to know that the 1st defendant got the khatha of the suit schedule property changed in his name in different number on the basis of the concocted and forged documents. Subsequently she made application to the Bengaluru Mahanagara Palike on 20/7/2014 to effect the khatha of the suit schedule property in her name by canceling the khatha stands in the name of defendant No.1. She further stated that after prolonged enquiry, the authorities of Bengaluru Mahanagara Palike gave endorsement dated 13/7/2005 to approach the civil court in this regard.
5. It is further contended that the defendant No.1 on the basis of concocted and forged un-registered general power of attorney got registered the sale deed dated 20/10/1994 and got the khatha of the suit schedule property in his name. It is further stated that the defendant No.1 has transferred the suit schedule property in favour of defendant No.2 by giving wrong description under registered sale deed dated 9/7/2004 and the defendant No.2 is in illegal occupation of the suit schedule 6 O.S.No.6432/2005 property and illegal construction put up by him in the suit schedule property.
6. It is further stated that neither the plaintiff executed any document transferring the suit schedule property to anybody, much less in favour of the defendant No.1 and 2 nor she has intention to dispose off the same, as such the said registered sale deed dated 24/10/1994 and sale deed dated 9/7/2004 are illegal and have no validity in the eye of law and the same are not binding on plaintiff. It is further stated that the encumbrance certificates from 1/4/1980 to 17/1/2005 in respect of suit schedule property clearly shows that the plaintiff has not alienated the suit schedule property to anybody and still she remain as absolute owner of the same. It is further stated that the defendant No.1 and 2 being utter strangers to the suit schedule property they have no any manner of right, title or interest over the same.
7. It is further stated that having come to know the endorsement issued by Bengaluru Mahanagara Palike to 7 O.S.No.6432/2005 approach the civil court, the defendants colluding together are illegally trying to alienate the suit schedule property to the 3rd persons to deprive the right of the plaintiff over the suit schedule property.
8. It is further stated that the cause of action for the suit arose for the first time during August 1997 when plaintiff noticed the illegal construction in the suit schedule property and on her subsequent visits to the suit schedule property to settle the issue and on 16/7/2004, when it was noticed that the defendant No.2 was attending to the repairs and on 17/8/2004, when the plaintiff came to know the transfer of khatha of suit schedule property in the name of the 1st defendant under the different number and on 20/7/2004, when she made an application to the Bengaluru Mahanagara Palike to effect khatha and on 13/7/2005 when an endorsement issued by the Bengaluru Mahanagara Palike and subsequently on 13/8/2005 when the defendants tried to alienate the suit schedule property and subsequently within the jurisdiction of this court. So in view of her above 8 O.S.No.6432/2005 contention, she has come up with the present suit and accordingly prays for to decree the suit.
9. In pursuance of the suit summons sent by this court the defendant No.1 and 2 appeared before the court and filed their detailed written statement by denying all the plaint averments. Defendant No.1 in his written statement contended that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. It is further stated that the averments made in the plaint does not constitute sufficient grounds for any cause of action for grant of the reliefs sought for. Hence the suit is liable to be dismissed with cost.
10. It is further contended that the prayers of the plaintiff in the plaint is mischievous and with an intention to usurp the schedule property of the defendant of untenable and vexatious grounds. The plaintiff has filed the suit with malafide intention to make unlawful gain and to harass the 1st defendant. Hence the suit of the plaintiff is liable to be 9 O.S.No.6432/2005 dismissed with exemplary cost of Rs.2,00,000/- as per section 35(A) of C.P.C. It is further contended that during the year 1994, the defendant No.1 intending to buy property, it was represented to him that the plaintiff had purchased the property bearing No.33/B situated at 80 feet road, Cholanayakanahalli, HMT Layout, Bengaluru - 32, from the previous owner Narayanappa under registered sale deed dated 16/3/1984. It is further stated that after purchase of the suit schedule property, the plaintiff has executed general power of attorney and confirming affidavit in favour of C.N.Narayana Reddy on 10/2/1986. After that the said C.N.Narayana Reddy has executed general power of attorney in favour of Sarvar Khan.
11. It is further stated that after execution of general power of attorney by C.N.Narayana Reddy in favour of Sarvar Khan, the plaintiff and C.N.Narayana Reddy executed the registered sale deed in favour of defendant No.1 on 24/10/1994. It is further stated that the very averments of the plaint clearly indicates the falsity in her claim that she is 10 O.S.No.6432/2005 or continues to be the absolute owner of the suit schedule property. By her conduct, it is manifest that she had no subsisting right, title, interest in the suit schedule property having entered into the sale transaction with C.N.Narayana Reddy in 1996 and subsequently in favour of Sarvar Khan and ultimately through them in favour of defendant No.1. The documents executed by the plaintiff in favour of C.N.Narayana Reddy, i.e., agreement of sale, deed of general power of attorney and confirming affidavit shows that as early as in the year 1986, the plaintiff has no subsisting interest. Therefore there was no question of the plaintiff being ignored of the fact that from 24/10/1994, defendant No.1 was the absolute owner of the suit schedule property and in exercise of his absolute right of ownership had inducted tenants and was enjoying the suit schedule property receiving the rents continuously and uninterruptedly. It is further stated that the 1st defendant as a combatant high ranking officer in Indian Air Force has been serving from 1995 in the capital of the country New Delhi.
11 O.S.No.6432/2005
12. It is the plaintiff who is the resident of local area. Therefore all the averments made by the plaintiff in para 4 of the plaint are mischievous and intending to create imaginative grounds for creating cause of action.
13. It is further stated that the defendant No.1 having purchased the suit schedule property and in exercise of his right of ownership, legitimately got the schedule property transferred to this name in the corroborative records. It is further stated that the plaintiff having realized there was escalation in the value of the suit schedule property in the recent years tried to harass him to extract money by seeking cancellation of khatha. When her request has been rejected by the corporation, the plaintiff is doing all fraudulent acts. It is further stated that the plaintiff has voluntarily transacted and sold the suit schedule property in the year 1986 and the defendant No.1 has believed the assurance of predecessors in title and has purchased the property in good faith for valuable consideration. The fact of defendant No.1 from the date of purchase, i.e., on 24/10/1984 has been in peaceful, 12 O.S.No.6432/2005 uninterrupted and continuous possession of the suit schedule property indicates his impeachable right, title and interest. Therefore the transaction between him and the 2nd defendant is valid and there was no reason for him to enter into any further transaction.
14. It is further contended that even presuming, though not conceding the cause of action arose in the year 1997, then the suit itself is not maintainable and is barred by time. It is further stated that the plaintiff has not paid the proper court fee and there is no cause of action to file the present suit. It is further contended that the suit is also bad for non-joinder of necessary parties, etc. On these grounds and among other grounds he sought for to dismiss the suit.
15. Defendant No.2 in his written statement contended that the suit filed by the plaintiff is not maintainable, as such, the same is liable to be dismissed. It is further stated that the plaintiff has purchased the suit schedule property from its previous owner C.N.Narayana Reddy under registered sale 13 O.S.No.6432/2005 deed dated 16/3/1984, after purchase of the suit schedule property, she has executed general power of attorney and confirming affidavit in favour of C.N.Narayana Reddy on 10/2/1986 and thereafter C.N.Narayana Reddy has executed general power of attorney in favour of Sarvar Khan.
16. It is further stated that after execution of general power of attorney by C.N.Narayana Reddy in favour of Sarvar Khan the plaintiff and C.N.Narayana Reddy executed registered sale deed in favour of 1st defendant on 24/10/1004. It is further contended that the plaintiff and Sarvar Khan both have executed sale deed in favour of the 1st defendant on 20/10/1994, in turn after having absolute right, title and possession over the suit schedule property by the 1st defendant, has executed registered sale deed in favour of the 2nd defendant after receipt of total sale consideration amount. It is further stated that the plaintiff executed general power of attorney and affidavit to confirm the sale transaction of the suit schedule property in favour of C.N.Narayana Reddy in 14 O.S.No.6432/2005 turn C.N.Narayana Reddy has executed general power of attorney and affidavit in favour of Sarvar Khan.
17. It is further stated that Sarvar Khan sold the suit schedule property in favour of 1st defendant and got executed the registered sale deed through C.N.Narayana Reddy and Sharadamma after having absolute possession over the suit schedule property. 1st defendant sold the suit schedule property in favour of 2nd defendant under registered sale deed. The 1st transaction taken place in between plaintiff and C.N.Narayana Reddy in the year 1986, since from the date of 1986, the subsequent purchaser of the suit schedule property constructed the residential house and residing along with family, as such the plaintiff is not at all having any voice, much more the relief sought by her does not arise and she is not entitled for any relief as sought by her, etc. On these grounds and among other grounds he sought for to dismiss the suit.
15 O.S.No.6432/2005
18. The plaintiff has filed his rejoinder to the written statement filed by the plaintiff, wherein it is contended that the plaintiff having purchased the suit schedule property she has never disposed off or dealt with the same with anybody in any manner either by executing the alleged general power of attorney either in favour of C.N.Narayana Reddy or Sarvar Khan or in favour of anybody. It is further stated that on the basis of concocted and forged document the defendants in collusion with the said land grabbers have created registered sale deed in their favour behind the back of the plaintiff in order to deprive her right over the suit schedule property. It is further stated that the plaintiff having not participated in any of the proceedings and much less not received any consideration, the said transactions are not binding on her. It is further stated that she is not knowing C.N.Narayana Reddy and Sarvar Khan and she has not executed the so called alleged general power of attorney in their favour in respect of the suit schedule property at any point of time, etc. On these grounds and among other grounds she prays for to decree the suit.
16 O.S.No.6432/2005
19. Heard the arguments.
20. The learned counsel for the plaintiff also filed his written arguments and in support of his case he has relied upon the following decisions:
(1) 2006(4) KCCR page 2235 (2) 2010 AIR (SCW) page 689
21. The learned counsel for the defendant No.1 in support of his arguments has relied upon the following decisions:
(1) ILR 2014 Kar page 5111 (2) (2011)9 SCC page 126
22. On the basis of the above rival pleadings of the parties, my learned predecessor-in-office has framed the following issues and additional issues which are as under :
(1) Whether plaintiff proves her valid title over the suit schedule property as on the date of the suit ?17 O.S.No.6432/2005
(2) Whether the plaintiff proves that registered sale deeds dated 24/10/1994 and 9/7/2004 executed in favour of defendant No.1 and 2 are not binding on the plaintiff ?
(3) Whether the plaintiff is entitled for the recovery of possession of the suit property as prayed for ?
(4) Whether the plaintiff is entitled for the mandatory injunction as prayed for ?
(5) Whether the plaintiff is entitled for the perpetual injunction as prayed for ?
(6) Whether the plaintiff is entitled for the mesne profit as sought for ?
(7) Whether the plaintiff is entitled for a decree as prayed for ?
(8) What order or decree ?
Additional issue:
(1) Whether suit is barred by limitation ?18 O.S.No.6432/2005
(2) Whether suit is not properly valued and court fee paid is not sufficient ?
23. The plaintiff in order to establish her case, she herself got examined as PW1 and got marked as many as 11 documents from Ex.P1 to P11 and closed her side evidence. The defendant No.1 in order to establish his case, he himself got examined as DW1 and defendant No.2 in order to establish his case, he himself got examined as DW2 and they got marked as many as 42 documents from Examined.D1 to D42 and also got examined one witness as DW3 and closed their side evidence.
24. My answer to the above said issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Negative
Addl. Issue No.1 : In the Affirmative
19 O.S.No.6432/2005
Addl. Issue No.2 : In the Negative
Issue No.8 : As per the final order
for the following:
REASONS
25. Issue No.1 & 2: Both these issues are
interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
26. The plaintiff in order to establish her case, she herself got examined as PW1 and filed her detailed affidavit by way of examination-in-chief, wherein she reiterated all the averments made in the plaint and further on oath stated before the court that she is the absolute owner of the suit schedule property bearing No.33/B having purchased the same under sale deed dated 16/3/1984 from her vendor V.Narayanappa for valuable consideration. She further stated that originally the land bearing Sy.No.93/2-B belongs to one Narappa Reddy and the said person got the land converted into the non-agricultural purpose as per the order of the 20 O.S.No.6432/2005 Deputy Commissioner and in the said land, site No.33/B, the suit schedule property was purchased by one Akkaiamma and thereafter the said Akkaiamma sold the said site property in favour of one V.Narayanappa under sale deed dated 7/12/1981, from whom she has purchased the suit schedule property under sale deed dated 16/3/1984. She further stated that she was the resident of Devanahalli and she had some health problem, so she could not able to visit the suit schedule property on and oftenly.
27. She further stated that during the year 1997, when she visited the suit schedule property wherein illegal construction was going on and when she enquired with the person who was present there, she was told by him that he was inducted by somebody to look after the suit property and again when she visited in the year 1998, the said occupant repeated the same thing without disclosing the identity of the person who inducted. When on 20/7/2004 she visited the suit property, at that time, she found the 2nd defendant herein was attending the repair work, on enquiry he told that 21 O.S.No.6432/2005 defendant No.1 was the owner of the suit schedule property. Thereafter she enquired in Bengaluru Mahanagara Palike and came to know that the khatha of the suit schedule property by giving wrong number as site No.33 has been transferred in the name of defendant No.1. She further stated that the encumbrance certificate produced before the court shows that there is no encumbrance in respect of the suit schedule property belongs to her. She further stated that she made an application to Bengaluru Mahanagara Palike to effect khatha in respect of the suit schedule property in her name by canceling the said fake khatha stands in the name of defendant No.1. After enquiry the authority directed her to approach the civil court and accordingly issued endorsement.
28. She further stated that she has not at all executed any document, much less the alleged general power of attorney, as such the so called general power of attorney, sale deeds dated 24/10/1994 and 9/7/2004 are illegal and not binding on her. She further stated that she being the owner of the suit schedule property, entitled for recovery of the vacant 22 O.S.No.6432/2005 possession. She further stated that she has lost the original registered deeds dated 7/12/1981 and 16/3/1994 when her residence was collapsed due to rain. So she has produced the certified copies of the said sale deeds. She further stated that the defendant No.1 and 2 in collusion with the so called C.N.Narayana Reddy and Sarvar Khan got created the documents in order to deprive her legitimate right over the suit schedule property.
29. In support of her case, she got marked 11 documents. Ex.P1 is the certified copy of the sale deed dated 7/12/1981. Ex.P2 is the certified copy of the sale deed dated 16/3/1984. The copy of the petition seeking for transfer of khatha at Ex.P3, Ex.P4 is the acknowledgment issued by the corporation, Ex.P5 is the endorsement issued by Bengaluru Mahanagara Palike, Ex.P6 is the certified copy of the sale deed dated 24/10/1994, Ex.P7 is the sale deed dated 9/7/2004, Ex.P8 to 11 are the encumbrance certificates. So in view of her above oral and documentary evidence, she prays for to decree the suit.
23 O.S.No.6432/2005
30. Defendant No.1 in order to establish his case, he himself got examined as DW1 and filed his detailed affidavit by way of examination-in-chief wherein he reiterated all the averments made in the written statement and further on oath stated before the court that the plaintiff purchased the suit schedule property from one Narayanappa under registered sale deed dated 16/3/1984. He further stated that the plaintiff executed sale agreement in favour of one C.N.Narayana Reddy on 10/2/1986 agreeing to sell the suit schedule property for sale consideration of Rs.50,000/- and the entire sale consideration was paid by him to the plaintiff. He further stated that the plaintiff also executed general power of attorney dated 10/2/1986 and a confirmatory affidavit. So he stated that all right, title, interest and possession in the suit schedule property was conveyed to C.N.Narayana Reddy under three documents dated 10/2/1986 executed by the plaintiff. So he stated that on and after 10/2/1986 the plaintiff had no right or interest in the suit schedule property nor she was in possession thereof. He further stated that on 24 O.S.No.6432/2005 2/11/1988 the said C.N.Narayana Reddy executed further general power of attorney in favour of Sarvar Khan, S/o Usuf Khan, the plaintiff has signed the general power of attorney on 24/10/1984, the said C.N.Narayana Reddy and the plaintiff through their general power of attorney holder Sarvar Khan sold the suit schedule property to him under registered sale deed and he was put in possession of the same, as such exercise of acts of ownership.
31. He further stated that the khatha was transferred in his name in the records of Bengaluru Mahanagara Palike and himself was paying the taxes and he handed over all the original documents to purchaser, i.e, defendant No.2 when he sold the property to him. He further stated that he sold the suit schedule property to defendant No.2 for a valuable consideration under registered sale deed dated 9/7/2004 and thereafter he had no contact to the suit schedule property. so he contended that he is not a proper necessary party to the proceedings and his name has been wrongly included in the present suit. He further stated that the plaintiff is aware 25 O.S.No.6432/2005 about the transaction in 1986-88 namely general power of attorney, sale agreement and affidavit. He further stated that the fact that the original sale deed was handed over to the purchaser and the same was not in possession of the plaintiff and the fact that the plaintiff never bothered to visit the suit schedule property from 1984 onwards till the filing of the suit in 2005, is indicative that she has lost all right and interest in the suit schedule property.
32. Defendant No.2 in order to establish his case, he himself got examined as DW2 and filed his detailed affidavit by way of examination-in-chie4f wherein he reiterated all the averments made in his written statement and further on oath stated before the court that the plaintiff has purchased the suit schedule property from its previous owner V.Narayanappa under registered sale deed and then the plaintiff sold the suit schedule property in favour of C.N.Narayana Reddy on 10/2/1986 executing general power of attorney in his favour confirming the sale transaction. The plaintiff executed confirming affidavit and sale agreement in favour of 26 O.S.No.6432/2005 C.N.Narayana Reddy on 10/2/1986. He further stated that in turn the said C.N.Narayana Reddy after having absolute right and title over the suit schedule property, has executed general power of attorney and affidavit in favour of Sarvar Khan. He further stated that said Sarvar Khan sold the suit schedule property in favour of defendant No.1 and got executed the registered sale deed through C.N.Narayana Reddy and Sharadamma. After having absolute possession over the suit schedule property, defendant No.1 sold the property in his favour under registered sale deed. He further stated that the 1st transaction taken place in between Sharadamma and C.N.Narayana Reddy in the year 1986 and since from the date of 1986, subsequent to purchaser of the suit schedule property, thereafter under taking the construction of the residential house and residing along with his family in the suit schedule property. He further stated that since from the date of purchase without any obstruction he is residing in the suit schedule property along with his family members. So he stated that the plaintiff is not at all entitled for any relief. 27 O.S.No.6432/2005
33. In support of their evidence they got marked as many as 42 documents. Ex.D1 is the original sale deed dated 16/3/1984. Ex.D2 is the agreement of sale dated 10/2/1986, Ex.D3 is the confirming affidavit dated 10/2/1986, Ex.D4 is the demand register extract for the year 1988-89, Ex.D5 is the registered sale deed dated 24/10/1984, Ex.D6 is the affidavit issued by Bengaluru Mahanagara Palike dated 9/3/2004, Ex.D7 is the registered sale deed dated 9/7/2004, Ex.D8 and 9 are encumbrance certificates, Ex.D10 is the khatha certificate, Ex.D11 is the khatha extract, Ex.D12 to 15 are the tax paid receipts, Ex.D16 is the application given to BWSSB, Ex.D17 is the receipt for having paid amount to BWSSB, Ex.D18 is the lease deed dated 7/9/1993, Ex.D19 is the lease deed dated 2/4/1995, Ex.D20 is the receipt dated 6/3/1995, Ex.D21 is the rent agreement dated 2/4/1996, Ex.D22 is the lease deed dated 12/6/1997, Ex.D23 is the pass book, Ex.D24 is the khatha certificate, Ex.D25 is the tax information given by the Bengaluru Mahanagara Palike, Ex.D26 is the tax receipt, Ex.D27 is the reply given by Bengaluru Mahanagara Palike, Ex.D28 to 32 are the five tax paid receipts, Ex.D33 to 28 O.S.No.6432/2005 38 are the tax receipts for the period 2009-10 to 2014-15. Ex.D39 to 41 are the three electricity bills, Ex.D42 is the receipt given by the plaintiff in favour of Sarvar Khan for having received the amount. So in view of the above evidence and document they prays for to dismiss the suit.
34. The defendant No.2 in support of his case got examined one witness as DW3 who is none other than the son of Sarvar Khan. The said witness in his evidence has stated that his father during his life time, purchased the property bearing No.33/B from C.N.Narayana Reddy and Sharadamma. He further stated that at the time of said transaction balance sale consideration amount paid by his father in favour of Sharadamma and she has executed the said receipt confirming the sale transaction of the suit schedule property on 14/4/1990. After purchasing the suit schedule property his father executed the registered sale deed in favour of defendant No.1 under registered sale deed dated 24/10/1994. So looking into the evidence of this witness, it shows that he has supported the case of defendants.
29 O.S.No.6432/2005
35. The learned counsel for the plaintiff in his written arguments contended that the plaintiff has filed the present suit for declaration of title, cancellation of registered sale deeds and for possession of the suit schedule property with consequential relief of mandatory injunction, permanent injunction and also for mesne profits against the defendants. He further contended that the plaintiff is the absolute owner of the property bearing site No.33/B having purchased the same under sale deed dated 16/3/1984 from one V.Narayanappa as per Ex.P2. He further contended that the plaintiff being the resident of Devanahalli, and being a widow, suffering from hyper-thyroid and cardiac problems, she could not visit the suit schedule property. He further contended that during the middle of 1997 the plaintiff visited the suit schedule property wherein she found illegal construction came up with the suit property and on enquiry with the occupant, it was revealed that he was indulged by somebody to look after the same. He further contended that on appraising the fact that the plaintiff is the absolute owner of the suit schedule property and the 30 O.S.No.6432/2005 present construction is an illegal construction the occupant assured to call upon the person who inducted him, who was away from Bengaluru for settlement of issue and to inform the plaintiff. He further contended that as there was no information again during beginning of 1998, the plaintiff visited the suit schedule property and again the occupant repeated the same without disclosing the identity of the person who inducted him.
36. He further contended that the plaintiff waited for settlement issue amicably and then again she visited the suit schedule property on 18/7/2004 at that time she noticed that defendant No.2 was attending the repairs and on enquiry she was told by him that defendant No.1 was the owner of the suit schedule property. He further contended that the plaintiff subsequently on enquiry in the office of Bengaluru Mahanagara Palike, she came to know that the 1st defendant got the suit schedule property in his name in respect of the suit schedule property in different number on the basis of the concocted and forged document. It is further contended that 31 O.S.No.6432/2005 the plaintiff made an application to Bengaluru Mahanagara Palike to effect khatha in her name in respect of the suit schedule property by canceling the khatha standing in the name of defendant No.1 and Bengaluru Mahanagara Palike authorities after enquiry gave an endorsement dated 13/5/2005 as per Ex.P5.
37. It is further contended that the defendant No.1 on the basis of the concocted and forged un-registered general power of attorney, got registered sale deed dated 20/10/1994 as per Ex.P6 and the khatha of the suit schedule property got transferred to his name. It is further contended that the defendant No.1 subsequently transferred the suit schedule property in favour of defendant No.2 by giving wrong description under a concocted registered sale deed dated 9/7/2004, as such defendant No.2 is in illegal occupation of the suit schedule property and thereon put up illegal construction.
32 O.S.No.6432/2005
38. It is further contended that the plaintiff at any point of time never executed any document transferring the suit schedule property to anybody, much less in favour of defendant No.1 or defendant No.2 nor she had any intention to dispose off the same. So he contended that the said sale deeds dated 20/10/1994 and 9/7/2004 being illegal have no validity in the eye of law and not binding on plaintiff. He further contended that the encumbrance certificate produced by the plaintiff at Ex.P8 to P11 for the period from 1/4/1980 to 17/1/2005 in respect of suit property clearly shows that the plaintiff has not alienated her property to anybody and still she remained as its absolute owner. So he contended that the defendant No.1 and 2 being utter strangers, they have no any manner of right, title or interest over the suit schedule property and they are in collusion with each other based on concocted document, illegally trying to alienate the suit schedule property to third persons to deprive the right of the plaintiff over the suit schedule property.
33 O.S.No.6432/2005
39. He further contended that it is the specific case of the plaintiff that the suit schedule site No.33/B has been formed in Sy.No.93/2B of Cholanayakanahalli, HMT Layout, Bengaluru - 32 and there is no existence of property bearing site No.33 as referred to in Ex.P6 (Ex.D5) and Ex.P7 (Ex.D7). He further contended that the defendants have not chosen to prove regarding the existence of site No.33 in the layout formed in Sy.No.92/2B. Both defendants in the written statement have specifically admitted property bearing No.33/B belongs to plaintiff having purchased the same under sale deed dated 16/3/1984 as per Ex.P2. He further contended that the concocted sale deeds at Ex.D5 and D7 stands in the name of defendant No.1 and 2 respectively show that the suit schedule property is mentioned as 33, which is entirely different from property belongs to the plaintiff vide Ex.P2. He further contended that though the defendant No.1 contended that he has purchased the suit schedule property under a concocted deed dated 24/10/1994 and got the khatha transferred in his name only on 9/3/2004 after the lapse of more than 10 years from the date of purchase which 34 O.S.No.6432/2005 absolutely creates clouds regarding the genuinity stands in the name of defendant No.1. So it is contended that the said document is nothing but a concocted document and based on the same, obtained khatha in his name on 9/3/2004 and immediately on 9/7/2004 in collusion got executed the concocted sale deed in favour of defendant No.2 as per Ex.P7.
40. He further contended that the defendants have been claiming title over the suit schedule property based on some concocted registered documents executed in pursuance of un- registered document stated to have been executed by plaintiff, i.e, Ex.D2, the agreement of sale dated 10/2/1986 standing in the name of Narayana Reddy, Ex.D3 is the confirmation affidavit dated 10/2/1986 stated to have been executed by plaintiff and two general power of attorneys of 1986 and 1988 stated to have been executed by plaintiff in favour of Narayana Reddy and thereafter from Narayana Reddy to Sarvar Khan. He further contended that the plaintiff has specifically denied the signature found in the said document and also she has deposed before the court that she has not executed any such 35 O.S.No.6432/2005 documents. He further contended that the defendants produced tax paid receipts at Ex.D12 to 15 but the said revenue documents are not the documents of titles, as such no right or interest will create under the said document in favour of defendants. So he contended that based on the revenue document, the defendants will not derive title over the property. The sale deeds at Ex.P6 and Ex.P7 standing in the name of defendant No.1 and 2 are concocted and refers to different property number, as such the defendants failed to establish that the said concocted sale deeds are referred to the suit schedule property.
41. He further contended that the defendant No.1 and 2 in their cross-examination have admitted that there is lot of difference in not only in property number, but also in the mentioning boundaries in Ex.D1, Ex.D5 and Ex.D7 registered documents. The statement of DW1 is contradictory to his own statement regarding making an enquiry prior to the execution of concocted document at Ex.D5, so the said aspect is sufficient to draw adverse inference against the defendants. He 36 O.S.No.6432/2005 further contended that the plaintiff being not a party to the said sale transaction, they are not binding on her. He further contended that the defendants having failed to prove their legal right and possession over the suit schedule property, they are not entitled to continue in possession of the suit schedule property.
42. He further contended that after closure of the evidence of both sides, defendants have come up with some of the documents like rental agreement and receipts of 1993-97 which also already in the custody of the defendants, but not produced and Ex.D42, the alleged agreement of sale in custody of defendant No.2, much prior and examining DW3 in support of their case, wherein he was not definite about the nature of document produced, as such no relevancy can be placed on the evidence of DW3. He further contended that DW3 in his cross-examination deposed that he has acquainted with defendant No.2 since 10 years and the said document, i.e. Ex.D2 has been handed over two years back but the defendant No.2 having kept quite for sufficient month time at 37 O.S.No.6432/2005 a later stage has come up with the present application when the matter was set down for arguments. So what he contended that though the said document in the custody of the defendants, but they have not produced the same at the earliest point of time and non-production of the same at the earliest point of time would creates cloud regarding the genuinity of the document, regarding their admission. So he contended that the very oral and documentary evidence adduced and produced by the plaintiff clearly shows that the plaintiff has got valid title over the suit schedule property and the alleged sale deed dated 24/10/1997 and 9/7/2004 executed in favour of defendant No.1 and 2 are not binding on the plaintiff. So in view of his above written arguments, he urged to answer issue No.1 and 2 for consideration in the Affirmative.
43. The learned counsel for the defendant No.1 during the course of his arguments contended that the suit schedule property is corporation site No.22 formed in Sy.No.93/2B. He further contended that the plaintiff has sought for declaration 38 O.S.No.6432/2005 of ownership and for such other reliefs. He further contended that the relief No.4 for possession and relief No.5 for injunction are mutually inconsistent. What he contended that there cannot be injunction unless the plaintiff establishes possession. He further contended that the vendor V.Narayanappa purchased the suit schedule property from its previous owner under sale deed dated 7/12/1981 as per Ex.P1. He further contended that N.Narayanappa sold the suit schedule property to the plaintiff under Ex.P2, i.e., certified copy of the sale deed. He further contended that the original of the said sale deed is produced by the defendants at Ex.P1, but plaintiff contended that he has lost the original sale deed. So what he contended that Ex.D1 is the original of Ex.P2.
44. He further contended that the plaintiff executed general power of attorney, sale agreement and confirmation agreement regarding delivery of possession of suit schedule property in favour of one Narayanappa under Ex.D2 and Ex.D3 on 10/2/1986. He further contended that then the 39 O.S.No.6432/2005 general power of attorney holder Narayana Reddy representing plaintiff executed another general power of attorney in favour of one Sarvar Khan and the plaintiff has signed the general power of attorney as witness on 2/11/1988. he further contended that the evidence on record clearly shows that the plaintiff through her general power of attorney holder executed sale deed in favour of defendant No.1 under Ex.P6 and Ex.D5, both are one and the same documents. He further contended that subsequently the defendant No.1 sold the suit schedule property to defendant No.2 under Ex.P7 and Ex.D7, both are one and the same document and in pursuance of the same the khatha in respect of the suit schedule property came to be entered in the name of defendant No.2 as per Ex.D10 and Ex.D11 and the defendant No.2 himself paying taxes in respect of the suit schedule property as per Ex.D12 to Ex.D17.
45. He further contended that the plaintiff has filed the present suit for declaration of ownership and to declare the sale deeds dated 24/10/1994 and 9/7/2004 are null and void and sought for cancellation of the same. So also the plaintiff 40 O.S.No.6432/2005 sought for possession, mandatory injunction, permanent injunction and for mesne profits. He further contended that though the plaintiff claims such reliefs, but he has not shown nor produced any document regarding proof of possession or ownership from 1984 to 1997. He further contended that even the plaintiff has not paid either tax nor khatha is standing in her name after 1994. He further contended that the very evidence given by PW1 during the course of his cross examination at page No.12, 13 and 14 goes to show that she has admitted with regard to the said aspect.
46. He further contended that the defendant No.1 purchased the suit schedule property from plaintiff through general power of attorney holder on 24/10/1994 as per Ex.D5 and thereafter defendant No.1 sold the suit schedule property to defendant No.2 on 9/7/2004 as per Ex.D7. What he contended that the said registered documents are presumed to be created and the plaintiff has not challenged the sale deeds within time, as such the suit of the plaintiff is barred by limitation.
41 O.S.No.6432/2005
47. He further contended that though the plaintiff claims that the original sale deed dated 16/3/1984 is lost, but the said document is produced by the defendants. So he contended that the handing over of original document at the time of executing general power of attorney and the agreement which contributes a irrevocable agency coupled with interest as per section 202 of Contract Act. So he contended that the possession and custody of original sale deed dated 16/3/1984 by the defendant is consistent with their ownership and possession of the suit schedule property. he further contended that the suit of the plaintiff is bad for non-joinder of necessary parties. What he contended that the general power of attorney holders of the plaintiff, i.e., Narayana Reddy and Sarvar Khan are necessary parties to the present proceedings, but admittedly the plaintiff for the best reasons known to her has not made them as parties to the proceedings, as such, the suit of the plaintiff is liable to be dismissed for non-joinder of necessary parties. So he contended that the oral and documentary evidence clearly shows that the plaintiff failed to 42 O.S.No.6432/2005 prove her valid title of the suit schedule property as on the date of the suit and the evidence on record shows the plaintiff has failed to establish by producing acceptable evidence that the sale deed dated 24/10/1994 and 9/7/2004 executed in favour of defendant No.1 and 2 are not binding on her. So in view of his above arguments, he urged to answer issue No.1 and 2 for consideration in the Negative.
48. The learned counsel for the defendant No.2 during the course of his arguments contended that the plaintiff purchased the suit schedule property from V.Narayanappa under Ex.P2. he further contended that subsequently the plaintiff executed general power of attorney and affidavit to confirm the sale transaction of the suit schedule property in favour of Narayana Reddy and in turn Narayana Reddy after absolute right, title over the suit schedule property has executed the general power of attorney and affidavit in favour of Sarvar Khan. He further contended that the said Sarvar Khan sold the suit schedule property to defendant No.1 and got executed the registered sale deed through Narayana Reddy 43 O.S.No.6432/2005 and the plaintiff. He further contended that thereafter defendant No.1 sold the suit schedule property in favour of defendant No.2 under registered sale deed dated 9/7/2004 as per Ex.D7. So he contended that the 2nd defendant since from the date prima facie purchase of the suit schedule property is enjoying the same without any obstruction, as such the plaintiff is not entitled for any relief, much less the relief as sought by her in the present suit. He further by placing his reliance upon the evidence of DW3, who is none other than the son of Sarvar Khan contended that the very evidence given by him shows that he has handed over Ex.D42 to the defendants, i.e., the receipt passed by the plaintiff for having received part sale consideration amount. He further contended that after purchasing of suit schedule property by defendant No.2 all the revenue documents came to be entered in his name. The plaintiff inspite of having knowledge of all these aspect and though she herself participated in the transactions relating to the suit schedule property, she has come up with the present suit in order to knock off the suit schedule property which was sold in favour of defendant No.2 for a valuable consideration. 44 O.S.No.6432/2005 So he contended that the very oral and documentary evidence placed before the court on behalf of the defendants clearly shows the plaintiff is not entitled for any reliefs. So in view of his above arguments he urged to answer issue No.1 and 2 for consideration in the Negative.
49. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. Admittedly this is a suit filed by the plaintiff, seeking for declaration to declare her as the absolute owner of the suit schedule property, to declare the sale deeds dated 24/10/1994 and 9/7/2004 are null and void, as such they are liable to be cancelled. So also the plaintiff sought for the relief of mandatory injunction to demolish the illegal construction put up by the defendant on the suit property and also sought for possession of the suit schedule property, perpetual injunction and mesne profits.
50. Upon hearing rival contentions absolutely there is no much dispute with regard to the factum that the vendor of 45 O.S.No.6432/2005 the plaintiff by name V.Narayanappa purchased the suit schedule property from its previous owner under sale deed dated 7/12/1981 as per Ex.P1. So also it is an undisputed fact that the plaintiff purchased the suit property under Ex.P2, i.e., certified copy of the sale deed and Ex.D1, i.e., original of Ex.P2. It is the case of the plaintiff that at no point of time, she has executed any kind of document, much less the power of attorney, sale agreement and confirmation agreement in favour of any third persons, much less defendant No.1 and 2. so it is the firm stand of the plaintiff that after purchase of the suit schedule property on 16/3/1984 under Ex.P2, she has not sold property in favour of any third parties nor executed any kind of agreement in favour of third parties and she is the absolute owner of the suit schedule property.
51. At it is already stated above, it is the firm stand of the plaintiff that she has not executed the alleged general power of attorney, sale agreement and confirmation agreement in favour of any third parties, much less in favour of defendants. So also it is the firm stand of the plaintiff that she 46 O.S.No.6432/2005 lost the original sale deed dated 16/3/1984, when her house was collapsed due to heavy rainfall. In the light of the above contention of the plaintiff, upon perusal of the oral and documentary evidence on record, it shows that the plaintiff has failed to establish before the court that as on the date of filing the suit, she had valid title over the suit schedule property. The evidence on record shows that Ex.D1, i.e., original sale deed of plaintiff dated 16/3/1984 produced by the defendants and that document during the course of his cross examination PW1 got marked by the defendants and the plaintiff in her cross-examination admitted that the said document is the original sale deed relating to the suit schedule property. When that would be the case, it is for the plaintiff to explain or establish before the court how the original sale deed dated 16/3/1984 as per Ex.D1 has come into the custody of defendants. The evidence on record shows that absolutely no acceptable explanation by the plaintiff with regard to the said aspect. As it is already stated above it is the firm stand of the plaintiff that she lost the original sale deed dated 16/3/1984 when her house collapsed due to heavy rainfall and if that 47 O.S.No.6432/2005 would be the case, absolutely there is no acceptable evidence placed before the court, what kind of steps has been taken by her with regard to the missing of the original sale deed dated 16/3/1984. The records shows that Ex.D1 original sale deed dated 16/3/1984 is in the custody of defendants and the same is also admitted by PW1 in her cross-examination. At this juncture, it would be useful to refer the evidence / admission given by PW1 during the course of her cross examination at page No.9 wherein at 1st para after three lines she deposed as under:
"The witness has shown original sale deed executed in her favour by Narayanappa. Witness admits that it is the sale deed in her favour in respect of the said property, hence this document is marked as Ex.D1."
52. The above evidence shows that she has admitted the original sale deed Ex.D1 which was in the custody of the defendant. As it is already stated above, the plaintiff has totally denied the execution of general power of attorney, sale agreement and confirmation agreement in favour of Narayana 48 O.S.No.6432/2005 Reddy as per Ex.D2 and Ex.D3. Though she has denied the said aspect, but the evidence given by her during the course of cross examination clearly shows that though she has executed the above said documents for the best reasons known to her, she has deliberately denied the execution of the said documents. At this juncture, it would be relevant to state the evidence given by PW1 during the course of cross examination at page No.13, 9th line from the top which reads as under:
"It is true that Ex.D1 was not in my custody. It is true that when I had executed power of attorney in favour of Narayanappa, I had handed over Ex.D1 to him."
53. The very above evidence given by PW1 during the course of his cross examination goes to collapse the entire case of the plaintiff, in pursuance of the execution of general power of attorney, sale agreement and confirmation agreement, the plaintiff has handed over the original sale deed dated 16/3/1984, i.e., Ex.D1 to the defendants. Inspite of the said aspect, the plaintiff deliberately contending that she lost the original sale deed when her house collapsed due to heavy 49 O.S.No.6432/2005 rainfall. So it can be said that though the plaintiff has sold the property under the document as referred above, but inspite of that the evidence on record clearly shows that some what she is trying to suppress the truth of the matter and also it shows the conduct of the plaintiff to knock off the suit property though she has sold the suit schedule property.
54. Another important aspect and also why a doubt may arises to belive the case of the plaintiff is that it is the contention of the plaintiff that she has purchased the suit property under Ex.P2 / D1 on 16/3/1984. But till the date of filing of the present suit, the revenue documents not got changed into her name in respect of the suit property. Even the said aspect has been admitted by PW1 during the course of his cross examination at page No.12, 1st para, 5th line from the top which reads as under:
"From 1984 till this date, khatha is not changed in my name and I have not paid taxes or revenue to the property. There are no documents to show that since 1984 I had exercised right over the suit schedule property."50 O.S.No.6432/2005
55. The above evidence given by the plaintiff clearly goes to show that though she claims as on the date of filing the suit she had valid title over the suit schedule property, but the very above evidence given by her clearly shows that till this date, she has not made any efforts to get her name entered into the revenue records relating to the suit schedule property. So adverse inference can be drawn that in pursuance of the property sold by her by virtue of general power of attorney, sale agreement and confirmation agreement, the revenue documents were not changed into her name relating to the suit schedule property. so also the evidence on record shows that though plaintiffs claims the original sale deed lost at the time of leaving her house due to collapse of her residing house due to heavy rain fall, but she has not taken any steps with regard to the missing of original sale deed. Even from the said conduct of the plaintiff adverse inference can be drawn that since she has sold the suit property under the document as stated above, for that reasons known to her, she has not taken any steps.
51 O.S.No.6432/2005
56. The learned counsel for the plaintiff in his written arguments contended that the encumbrance certificate produced before the court at Ex.P8 to 11 shows the sale transaction on 16/3/1984 and there is no subsequent alienation or encumbrance in respect of the suit schedule property. So far as the said aspect is concerned it can be said that any amount of revenue document would not goes to confirm title of the plaintiff in respect of the suit schedule property, as because the evidence on record shows she has sold the property in favour of defendants under the document as referred above. So it is needless to say that merely on the basis of Ex.P8 to 11 one cannot say that the plaintiff is having valid title over the suit schedule property as on the date of filing of the present suit. Apart from that the very document produced by the defendants at Ex.D10 and 11, i.e., khatha relating to the suit schedule property shows that the same is standing in the name of defendant No.2. So also the document produced by the defendants at Ex.D12 to 17 shows that the defendant himself is paying the tax in respect of the 52 O.S.No.6432/2005 suit schedule property. The defendant No.2 in pursuance of the purchase of suit schedule property for a valuable sale consideration under the registered sale deed, he himself paying the tax and the khatha in respect of the suit schedule property is also standing in his name. When such would be the case, the several contention taken by the plaintiff without any kind of acceptable oral and documentary evidence cannot be accepted.
57. The contention of the plaintiff is that she has not executed general power of attorney, sale agreement and confirmation agreement in favour of Narayana Reddy and she has not put her signature as a witness to the general power of attorney executed by Narayana Reddy in favour of Sarvar Khan. So also it is the contention of the plaintiff that the said documents are concocted and created documents and the said persons in collusion with the defendants forged her signature. When the plaintiff specifically contended that the above said documents are concocted and created documents and the signature forthcoming in said documents are not her 53 O.S.No.6432/2005 signature, it is for the plaintiff to prove the said aspect in the manner known to law, but the plaintiff has not done so. If according to the plaintiff the signature forthcoming in the said documents are not of her, certainly she would have made request to the court by filing an application to send the disputed signature along with her admitted signature to the expert for their opinion, but the same has not been done. So failure on the part of plaintiff in not taking steps in the manner known to law, adverse inference can be drawn that the plaintiff having executed the above said document, she has kept mum and not taken any steps. Apart from that, at it is already stated above, PW1 in her cross-examination at page No.13 in the middle portion admitted that she had executed power of attorney in favour of Narayanappa and at that time she had handed over Ex.D1 to him. So from the above said evidence, it can be said that the whole theory put forth by the plaintiff cannot be accepted. The defendants have produced sufficient acceptable documentary and oral evidence in order to substantiate their case. Per contra absolutely no acceptable neither oral or documentary evidence placed before the court 54 O.S.No.6432/2005 by the plaintiff to show that she has valid title over the suit schedule property as on the date of the suit. When such would be the case, she is not entitled for the relief i.e., the sale deed dated 24/10/1994 and sale deed dated 9/7/2004 executed in favour of defendant No.1 and 2 would not binds her. So by analyzing the over all oral and documentary evidence on record, this court is of the opinion that the plaintiff has failed to prove issue no.1 and 2. Accordingly issue No.1 and 2 are answered in the Negative.
58. Additional Issue No.1: The learned counsel for defendant No.1 during the course of his arguments contended that the very averments made in the plaint shows that the plaintiff noticed illegal construction and illegal occupation in 1997/1998 but the present suit is filed on 25/8/2005. So what he contended that from the date of knowledge, i.e., in the year 1997/1998 the suit is to be filed within three years as per section 58 of the Limitation Act, whereas the present suit is filed after the lapse of prescribed time. He further contended that the plaintiff has shown in para 8 of the plaint that the 55 O.S.No.6432/2005 cause of action also accrued to him on 16/7/2004 and on 17/8/2004. so far as that aspect is concerned, what he contended that the cause of action first when accrues that has to be taken into consideration and that is starting point of limitation, but not the subsequent dates. So he contended that the suit of the plaintiff is barred by limitation. In support of his arguments, he has relied upon the decision reported in ILR 2004 Kar 5111 and also another decision reported in 2011(9) SCC page 126. So in view of his above arguments and decisions, he urged to answer additional issue No.1 for consideration in the Affirmative by holding that the suit of the plaintiff is barred by limitation.
59. On the contrary, the learned counsel for the plaintiff in his written arguments contended that the averments made in para 4 to 6 of the plaint clearly shows that the right to sue accrues for the first time subsequent to 16/7/2004, when an enquiry was made in the office of Bengaluru Mahanagara Palike she came to know that the khatha of the suit schedule property has been changed in the name of defendant No.1 and 56 O.S.No.6432/2005 thereafter in the name of defendant No.2 based on concocted sale transaction and subsequently on 13/7/2005 when the Bengaluru Mahanagara Palike issued an endorsement to get order from the civil court and subsequently when on 11/8/2005 the defendant No.2 got khatha of the suit schedule property transferred in his name vide Ex.D10 and 11. So what he contended that the right to sue accrues to the plaintiff when he came to know the wrong entries in the revenue records and when he given application to the concerned authority in respect of the same. So he contended that as per section 59 of the Limitation Act, the limitation starts from the date of wrong entry made in the revenue records came to the knowledge through the Bengaluru Mahanagara Palike authorities. In support of his contention he has relied upon the decisions reported in:
(1) 2006(4) KCCR 2235 (2) 2010 AIR SCW page 689 So in view of his above arguments and decision, he urged to answer additional issue No.1 for consideration in the Negative.57 O.S.No.6432/2005
60. In the light of the arguments canvassed by the respective counsels for the parties I have gone through the records. Upon perusal of para 4 of the plaint, it shows that wherein the plaintiff specifically stated that during the middle of 1997 when she visited the suit schedule property, she came to know through the occupant that he was intimated by somebody to look after the suit schedule property and further wherein it is stated that on appraising the fact that the plaintiff is the absolute owner of the suit schedule property and the present construction was an illegal construction. The occupant himself assured her to call the person who inducted him as he was away from Bengaluru for settlement of issue and to inform the plaintiff. So also wherein it is contended that again in 1998 she visited the suit property, at that time also the occupant repeated the same things and when she visited on 16/7/2004, she noticed the defendant No.2 was attending to repair and on enquiry she came to know that the defendant No.1 was the owner of the suit schedule property. So also in para 8 of the plaint, the plaintiff has stated about 58 O.S.No.6432/2005 the same thing with regard to the factum of when cause of action accrued to her.
61. So looking into the averments made in para 4 and 8 of the plaint, it can be said that the plaintiff came to know with regard to the illegal construction in the suit schedule property in the year 1997 itself and the reasons stated by the plaintiff in para 4, no prudent man will accept the said reason as because when the construction is going on in the property of the plaintiff she cannot expect to keep quite till 2005. So from the very averments made in para 4 of the plaint and also para 8 of the plaint, it can be said that the cause of action accrued to the plaintiff in the year 1997 itself. When that would be the case, the plaintiff is required to file the suit within three years from the date of cause of action accrued in the year 1997, as per section 58 of the Limitation Act, whereas the present suit is filed in the year 2005. The cause of action accrued for the first time that has to be taken into consideration for the purpose of considering the limitation period. In this regard, it would be useful to refer the decision 59 O.S.No.6432/2005 rendered in ILR 2014 Kar 5111 between Basavaraju Basavanappa Pattan Vs. Government of Karnataka, represented by Deputy Commissioner, Belgaum and others, wherein it was held by their lordship as under:
"Code of Civil Procedure, 1908, section 100
- Regular Second Appeal - Mis-appropriation of society funds by the defendant No.3 - Proceedings before the Assistant Registrar of the Co-operative Societies - Six awards were passed against defendant No.3 - Properties were sought to be sold in public auction to recover the amount - Suit filed by the plaintiff seeking declaration that the suit lands are not liable for attachment - Perpetual injunction sought restraining the defendant No.2 from attaching the properties - dismissal of suit as barred by limitation - As right to accrue to the plaintiff in the year 1987 - Adoptive mother of the plaintiff instituted a similar suit in the year 1987 - Participation of the plaintiff in the suit along with his mother in the year 1987 - Right to sue accrued in the year 1987 - Maintainability suits filed by the plaintiff in the year 1995 - HELD, cause of action to 60 O.S.No.6432/2005 challenge the awards passed against defendant No.3 had already arisen in 1987 itself. Limitation Act only bars the remedy and does not extinguish remedy. Limitation Act is an Act of repose and finality. The right to sue had already accrued when the defendants No.1 and 2 had attached the suit properties and brought them for sale by issuing public auction notice in the year 1987 itself.
FURTHER HELD,
(a) Just because O.S.No.80/1987 was
dismissed for default, it does not give rise to further cause of action to the plaintiff to file separate suits in the garb of seeking comprehensive relief of declaration. Even otherwise, the relief of declaration sought for in the suits is to the effect that the suit lands are not liable for attachment and for sale in order to recover the amount due under the six awards. Instead of pursuing the earlier suits after the death of his adoptive mother, the plaintiff allowed the suit to be dismissed for non-prosecution. Having questioned the very authority of defendant No.1 and 2 by filing a suit along with his mother in 1987, it cannot be 61 O.S.No.6432/2005 said that the cause of action for the later six suits arose only in 1995 and 1996.
(b) The courts below are justified in dismissing the suits on the ground of limitation as per article 58 of the Limitation Act, 1963. The cause of action as averred in the six plaints filed by the plaintiff in 1995 and 1996 cannot be considered as cause of action for the suits, since the cause of action had arisen in 1986 and 1987 when suit properties had been attached and notices had been issued to defendant No.3, proposing to hold public auction. Therefore, the said attachment contained in law for all practical purposes up to the period of 1995 and therefore right to sue for the plaintiff had first accrued in 1987. The invasion of the right of the plaintiff started in the year 1987 itself when attachment was done by defendant No.1 and 2 and their recovery officers and sale officers attempted to bring the suit properties for public auction. Hence, it cannot be held that the right of the plaintiff to file suit arose for the first time in 1995."62 O.S.No.6432/2005
62. Looking into the dictum laid down by their lordship in the above decision, it can be said that the above said decision is aptly applicable to the present case in hand. As it is already discussed above, the plaintiff in para 4 and 8 of the plaint specifically stated, she noticed illegal construction in the suit schedule property in the year 1997-98 itself, but inspite of that till 2005, that is to say till filing of the suit in the year 2005, she had not made any attempts to file the suit, much earlier to 2005. When the plaintiff noticed the illegal construction in her property in the year 1997, the limitation point start from that date itself and she required to file the suit within three years from the said date of knowledge, i.e., when she noticed illegal construction in her property in the year 1997 as per section 58 of the Limitation Act. Under such circumstances and looking into the dictum laid down by their lordship in the above decision, it can be said that the suit of the plaintiff is barred by limitation. I have gone through the decisions relied upon by the learned counsel for the plaintiff, but looking into the facts and circumstances of the present case, it can be said that those decisions would not come to the 63 O.S.No.6432/2005 aid of plaintiff and even the contention of the plaintiff counsel that limitation point starts from the date of knowledge of wrong entry made in the revenue records and the endorsement issued by the concerned authorities cannot be accepted. For the foregoing reasons and discussions the additional issue No.1 for consideration is answered in the Affirmative by holding that the suit of the plaintiff is barred by limitation.
63. Issue No.3 to 5: As already discussions made in detail in issue No.1 and 2 that the plaintiff has failed to prove her valid title over the suit schedule property as on the date of filing of the suit and also she has failed to prove that the sale deeds dated 24/10/1994 and 9/7/2004 executed in favour of defendant No.1 and 2 is not binds her, whereas the discussion made in issue No.1 and 2 clearly shows that the plaintiff has sold the suit schedule property in favour of defendants and for that reason till this date the revenue documents have not been transferred into her name in respect of the suit schedule property. When the plaintiff has failed to prove her valid title over the suit schedule property it is needless to say that the 64 O.S.No.6432/2005 plaintiff is not entitled for the relief of possession, mandatory injunction and perpetual injunction. So by considering the oral and documentary evidence adduced and produced by the respective parties, and in view of the discussion made in issue No.1 and 2, this court is of the opinion that the plaintiff is not entitled for any kind of relief, much less the relief as sought by her. Accordingly issue No.3 to 5 are answered in the Negative.
64. Additional issue No.2: The defendants in the written statement contended that the plaintiff has not properly valued the suit and court fee paid is insufficient. The defendants though they contended like so in their written statement but they have not stated in detail what is the required court fee to be paid by the plaintiff and they simply stated that the plaintiff has not properly valued the suit and the court fee paid is insufficient. When that would be the case and in the absence of sufficient materials the said bald contention cannot be accepted. On the other hand, the records shows that the plaintiff on the basis of the relief sought by him, has paid the required court fee as per the 65 O.S.No.6432/2005 Karnataka Court Fees and Suit Valuation Act. For the foregoing reasons and discussions, additional issue No.2 for consideration is answered in the Negative by holding that the defendants have failed to prove the said issue.
65. Issue No.6: The plaintiff in the suit sought for mesne profits. The question of considering the mesne profits would arise if plaintiff proves that the defendants are in illegal possession and enjoyment of the suit schedule property. As it is already discussed in detail in issue No.1 and 2 that the plaintiff has failed to establish before the court that she is having valid title over the suit schedule property as on the date of the suit and also failed to establish before the court that the sale deed dated 24/10/1994 and 9/7/2004 would not bind her. On the other hand, the oral and documentary evidence on record, clearly shows that the defendant No.2 is in peaceful possession and enjoyment of the suit schedule property for having purchased the same from defendant No.1 under registered sale deed. When that would be the case, it is needless to say that the plaintiff is not entitled for mesne 66 O.S.No.6432/2005 profits. Accordingly issue No.6 for consideration is answered in the Negative.
66. Issue No.7: In view of my findings to the above issues, the plaintiff is not entitled for decree as sought by him. Accordingly issue No.7 for consideration is answered in the Negative.
67. Issue No.8: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 27th day of April 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.67 O.S.No.6432/2005
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 : H.Sharadamma
Witnesses examined for the defendant:
DW1 : Sajjad Rahim
DW2 : Nasrulla Rifai
DW3 : Khwaja Khan
Documents marked for the plaintiff:
Ex.P1 : Certified copy of sale deed dated 7/12/1981
Ex.P2 : Certified copy of sale deed dated 16/3/1984
Ex.P3 : Copy of the petition seeking for transfer
of khatha
Ex.P4 : Acknowledgment issued by the corporation,
Ex.P5 : Endorsement issued by
Bengaluru Mahanagara Palike,
Ex.P6 : Certified copy of the sale deed
dated 24/10/1994,
Ex.P7 : Sale deed dated 9/7/2004,
Ex.P8-11 : Encumbrance certificates.
Documents marked for the defendant:
Ex.D1 : Original sale deed dated 16/3/1984.
Ex.D2 : Agreement of sale dated 10/2/1986,
68 O.S.No.6432/2005
Ex.D3 : Confirming affidavit dated 10/2/1986,
Ex.D4 : Demand register extract for the year 1988-89,
Ex.D5 : Registered sale deed dated 24/10/1984,
Ex.D6 : Affidavit issued by Bengaluru Mahanagara
Palike dated 9/3/2004,
Ex.D7 : Registered sale deed dated 9/7/2004,
Ex.D8 & 9: Encumbrance certificates,
Ex.D10 : Khatha certificate,
Ex.D11 : Khatha extract,
Ex.D12-15: Tax paid receipts,
Ex.D16 : Application given to BWSSB,
Ex.D17 : Receipt for having paid amount to BWSSB, Ex.D18 : Lease deed dated 7/9/1993, Ex.D19 : Lease deed dated 2/4/1995, Ex.D20 : Receipt dated 6/3/1995, Ex.D21 : Rent agreement dated 2/4/1996, Ex.D22 : Lease deed dated 12/6/1997, Ex.D23 : Pass book, Ex.D24 : Khatha certificate, Ex.D25 : Tax information given by the Bengaluru Mahanagara Palike, Ex.D26 : Tax receipt, Ex.D27 : Reply given by Bengaluru Mahanagara Palike, Ex.D28-32: Five tax paid receipts, Ex.D33-38: Tax receipts for the period 2009-10 to 2014-15.69 O.S.No.6432/2005
Ex.D39-41: Three electricity bills, Ex.D42 : Receipt given by the plaintiff in favour of Sarvar Khan for having received the amount.
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 70 O.S.No.6432/2005 Judgment pronounced in open court (vide separate detailed order) with the following operative portion:-
ORDER XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.71 O.S.No.6432/2005