Bangalore District Court
Sri.Manohar Shankar Goud vs Sri.Inder Bohra on 26 February, 2021
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH36)
DATED ON THIS THE 26th DAY OF FEBRUARY 2021
Present: Sri.Manjunatha.G.A., B.A.L.,L.L.B.,
XXXV Addl.CC & SS Judge,
Bengaluru.
O.S.No.1012/2008 & O.S.No.9963/2015
In O.S.1012/2008
Plaintiffs : 1. Sri.Manohar Shankar Goud,
S/o.Late Shankar C Goud,
Aged about 75 years.
2. Smt.Sharada Manohar,
W/o.Sri.Manohar Shankar Goud,
Aged about 65 years.
3. Sri.M.Manjunath Kumar,
S/o.Sri.Manohar Shankar Goud,
Aged about 42 years.
All are residing at No.462/34, 12th
Cross, 8th Main, Wilson Garden,
Bangalore27.
(Sri.G.H.N., Advocate)
Vs
2
Defendants : 1. Sri.Inder Bohra,
S/o.Late C.S.Pannalal,
Aged about 50 years,
Residing at No.1015,
Nagarthpet, Bangalore2.
2. M/s.Uni Card Marketing Pvt.Ltd.,
No.18 (Old No.199),
North Osman T.Nagar,
Chennai500 017.
Tamilnadu by its Managing Director.
Local Address:
No.462/34, 1st Floor,
8th Main, 12th Cross,
Wilson Garden, Bangalore27.
By its Manager.
(Sri.SVG, Advocate for
defendant Nos.1 & 2)
Date of institution of the suit : 31012008
Nature of the suit : Ejectment
Date of commencement of : 16042014
recording of the evidence
Date on which the judgment : 26022021
was pronounced
3
Total duration : Years/s Month/s Day/s
12 00 25
(MANJUNATHA.G.A.)
XXXV Addl.City Civil & Sessions
Judge, Bengaluru
IN O.S.NO.9963/2015
Plaintiffs : 1. Sri.Manohar Shankar Goud,
S/o.Late Shankar C Goud,
Aged about 75 years.
2. Smt.Sharada Manohar,
W/o.Sri.Manohar Shankar Goud,
Aged about 65 years.
3. Sri.M.Manjunath Kumar,
S/o.Sri.Manohar Shankar Goud,
Aged about 42 years.
All are residing at No.462/34,
12th Cross, 8th Main, Wilson
Garden, Bangalore27.
(Sri.G.M., Advocate)
Vs
4
Defendants : 1. Inder Bohra
S/o.Late C.S.Pannalal,
Aged about 54 years.
2. Smt.Pramila Bohra,
W/o.Inder Bohra,
Aged about 50 years.
(Sri.S.V.G., Advocate)
Date of institution of the : 07122015
suit
Nature of the suit : Declaration &
Injunction
Date of commencement of : 03012019
recording of the evidence
Date on which the judgment : 26022021
was pronounced
Total duration : Years/s Month/s Day/s
05 02 19
(MANJUNATHA.G.A.)
XXXV Addl.City Civil & Sessions
Judge, Bengaluru
5
COMMON JUDGMENT IN O.S.NO.1012/2008 &
O.S.NO.9963/2015
In brief, case of the plaintiffs in O.S.No.1012/2008 is
as follows:
Plaintiffs are the owners of plaint 'B' schedule
property. The first defendant entered into a registered
Lease Deed on 18122001 for a period of five years on a
monthly rent of Rs.1,000/ with refundable security deposit
of Rs.1,00,000/. Accordingly, defendant No.1 became a
tenant in respect of suit 'B' schedule property commencing
from 18122001 for a period of five years with a renewal
clause. There is also a Provision in the Lease Deed to sublet
the premises with the permission of the plaintiff No.1. On
persuasion by defendant No.1, plaintiffs consented to sublet
the premises to defendant No.2. Accordingly, a sublease
agreement was executed between defendant Nos.1 and 2 on
6
5122004. Plaintiffs have signed the said Deed as
consenting witness. As per the sublease agreement, the
permission of lease was only 11 months commencing from
1102004. At the first instance, 800 Sft out of 1600/ Sft
was sublet on a monthly rent of Rs.8,000/ with an advance
amount of Rs.80,000/ payable to defendant No.2. After the
expiry of sublease agreement, dated 5122004, defendant
Nos.1 and 2 have entered into another sublease agreement
dated 172006 to the entire extent of 1600 sft, on a
monthly rent of Rs.20,000/ with a security deposit of
Rs.1,80,000/. The second sublease agreement is without
bringing to the notice of the plaintiffs and the said lease was
also for a period of 11 months. Plaintiffs have not
consented to the second lease agreement. Defendant No.1
is collecting rent from defendant No.2 at the rate of
Rs.20,000/ p.m. At present, defendant No.1 is receiving a
7
sum of Rs.22,000/ from defendant No.2. But, defendant
No.1 failed to pay agreed rent of Rs.1,000/ p.m. to the
plaintiffs. Defendant No.1 has filed a frivolous suit in
O.S.No.5586/2006 for permanent injunction against the
plaintiffs. The plaintiffs are contesting the said suit.
Defendant No.1 is collecting heavy rents from second
defendant. Even after the expiry of lease period, he has not
handed over possession in favour of the plaintiffs.
Therefore, the plaintiffs are entitled for damages at the rate
of Rs.22,000/ per month. The plaintiffs have issued a legal
notice to both the defendants on 15102007 calling upon
them to vacate and hand over vacant possession of the suit
schedule property. Both the defendants have received
notice but they have not replied to the same. Therefore,
pleading cause of action to the suit at para No.12 of the
plaint, the plaintiffs prayed to direct the defendants to quit
8
and deliver vacant possession of suit schedule premises and
direct defendant No.1 to pay mesne profits at the rate of
Rs.20,000/ p.m. commencing from January 2007 to June
2007 and at the rate of Rs.22,000/ from July 2007 to
November 2007 and to pay future damages at the rate of
Rs.22,000/ p.m from the date of suit till handing over
vacant possession of the suit schedule property.
2. Defendant No.1 has appeared through his Advocate
and filed written statement contending that there is no
relationship of landlord and tenant between plaintiffs and
defendant No.1 either on the date of notice of termination
dated 15102007 or on the date of filing of the suit. There
is no cause of action to the suit. Defendant No.1 is the
absolute owner of the suit schedule property pursuant to a
Sale Deed executed in his favour on 8102007.
9
Accordingly, the erstwhile tenancy of defendant No.1 has
merged with his title and therefore, from 8102007,
defendant No.1 is in possession of the suit property as an
absolute owner. Therefore, the present suit based on the
jural relationship of landlord and tenant is not
maintainable. It is contended that prior to the Sale Deed
dated 18102007, defendant No.1 has entered into an
registered Sale Agreement to sell with the plaintiffs on
17122001. Defendant No.1 has paid up to date tax of
Rs.1,17,000/ on the suit property. Katha is mutated in the
name of defendant No.1 As per the Lease Deed, dated
18122001, defendant No.1 was permitted to sublet the
premises. Accordingly, the sublease agreement was entered
with defendant No.2. Defendant No.2 was irregular in
payment of rent by colluding with plaintiffs. Therefore,
defendant No.1 terminated the tenancy of defendant No.2
10
and filed O.S.No.306/2008 for ejectment. Plaintiffs are the
owners of suit property is denied. Defendant No.1 admits
that he was a tenant from 8122001. But, he became the
owner from 18102007. The averments made at para
Nos.9 to 14 are denied as false. The cause of action pleaded
to the suit is denied as false. Accordingly, defendant No.1
prayed to dismiss the suit with cost.
3. Defendant No.2 has appeared through his Advocate
and filed written statement. He admits the averments of the
plaint pleaded at para Nos.3 to 5. It is stated that after the
expiry of first sublease agreement dated 5122004,
defendant Nos.1 and 2 have entered into second sublease
agreement dated 172006 to enter extent of 1600 sft, on a
monthly rent of Rs.20,000/ with security deposit of
Rs.1,80,000/. Defendant No.2 insisted consent of
11
plaintiffs. However, defendant No.1 stated that he would
convince the plaintiffs and requested him to sign the second
sublease. Plaintiffs have not signed to the second sublease
agreement dated 172006. There is no agreement between
plaintiffs and defendant No.1. Accordingly, it is prayed to
dismiss the suit with cost.
4. Based on the pleadings of the parties, the following
issues are framed:
ISSUES IN O.S.NO.1012/2008
1. Whether the plaintiffs prove the jural
relationship of landlord and tenant
between themselves and the defendants?
2. Whether the plaintiffs prove that the
termination of tenancy of Defendant is in
accordance with law?
3. Whether the plaintiffs are entitled for
possession of the suit schedule property?
12
4. Whether the plaintiffs prove that they are
entitled for arrears of rent to the tune of
Rs.2,13,000/ (read as 2,30,000/) as
prayed?
5. Whether the plaintiffs prove that they are
entitled for future interest at the rate of
Rs.22,000/ p.m.?
6. Whether the plaintiffs are entitled for the
relief sought for?
7. What order or decree?
5. In brief, case of the plaintiffs in O.S.No.9963/2015
is as follows:
Plaintiff No.1 is the absolute owner of plaint 'A'
schedule property. Second plaintiff is the son of plaintiff
Nos.1 and 2. It is stated that plaintiff No.1 gifted ground
floor portion of 'A' schedule property to his daughter
Smt. Mangala and retained first and second floor portion of
'A' schedule property. Plaintiffs had taken a sum of
13
Rs.4,25,000/ from one Smt.Indira Ramanna on parting
with possession of first floor of 'A' schedule property by way
of lease. Smt.Indira Ramanna was demanding for
repayment of the said amount. Therefore, the plaintiffs
were searching for a tenant who could hire security deposit
and the same can be paid in favour of Indira Ramanna.
Smt.Indira Ramanna herself introduced defendant No.1
stating that he is a financial cum developer running a firm
in the name and style as M/s.Kunal Finance and
M/s.Kunal Developers. Accordingly, defendant No.1 agreed
to pay a sum of Rs.4,50,000/ to the plaintiffs, provided
plaintiffs execute a Lease Deed in respect of first floor
portion measuring 1600 Sq.ft of 'A' schedule property which
is separately described as 'B' schedule property on a
security deposit of Rs.4,50,000/ and on a monthly rent of
Rs.1,000/. Accordingly, defendant No.1 gave a draft copy
14
of the Lease Deed. But, in the draft Sale deed, the security
deposit amount is shown as Rs.1,00,000/ instead of
Rs.4,50,000/. Defendant No.1 stated that to avoid stamp
duty registration fee and income tax a sum of Rs.1,00,000/
is shown as security deposit instead of Rs.4,60,000/.
Accordingly, defendant No.1 promised to pay a sum of
Rs.3,50,000/ by cash in a separate receipt. On
18122001, the plaintiffs came to the office of Sub
registrar, by the time plaintiffs reached the office at
Jayanagar, Bengaluru, defendant No.1 along with two
others and a scribe were present at the office. Defendant
No.1 obtained several signatures of the plaintiffs on several
typed & blank papers in a hurry bury manner stating that
the lunch time would commence at 130 p.m. It was
promised that two sets of documents will be prepared and
one set will be given to the plaintiffs. Without explaining
15
the contents and without explaining the pros and cons,
plaintiffs signed the documents hoping that they are
executing a Lease Deed. Accordingly, under the said
registered Lease Deed, dated 18122001 possession is
handed over to defendant No.1 in respect of 'B' schedule
property. The first defendant filed O.S.No.15491/2002
before the Mayo hall Court, Bengaluru for the relief of
permanent Injunction. In the said suit, the plaintiffs were
forced to repay a sum of Rs.1,00,000/ by DD dated 179
2003 drawn on Canara Bank to defendant No.1. When the
plaintiffs requested some time to pay the remaining amount
of Rs.3,50,000/, defendant No.1 agreed if the plaintiffs
consent for subletting of a portion of 'B' schedule property.
Accordingly, a portion of 'B' schedule property is sublet to
defendant No.2 by defendant No.1 on 5122004 on a
monthly rent of Rs.8,000/. When the plaintiffs filed
16
O.S.No.1012/2008 for ejectment and for arrears of rent,
defendant No.1 in the said suit filed written statement
stating that he has purchased 'B' schedule property by way
of a registered Sale Agreement dated 17122001.
Defendant No.1 has further stated that there is a Sale Deed
in his favour in respect of 'B' schedule property on 1810
2007. Defendant No.1 has also stated about alleged GPA
executed in favour of his wife by the plaintiffs. At no point
of time, the plaintiffs have executed the registered Sale
Agreement, GPA and registered Sale Deed in favour of
defendant No.1 in respect of 'B' schedule property. The only
document they have executed is registered Lease Deed in
respect of 'B' schedule property. The plaintiffs never
intended to sell the 'B' schedule property. The plaintiffs had
no legal necessity to sell 'B' schedule property in favour of
defendant No.1. The valuation of schedule 'B' property is
17
much more than what is mentioned in the Sale Deed. The
defendants and their followers taking undue advantage of
position of the plaintiffs and with an intention to cause
wrongful gain purportedly created Sale Agreement, GPA and
Sale Deed. The Sale Agreement and GPA are perpetuated
by collusion by playing fraud, misrepresentation. As such,
the Sale Agreement and GPA are illegal, in valid, void and
not binding on the plaintiffs. The Sale Deed in the name of
defendant No.1 is a created document. The plaintiffs have
not received any consideration under the Sale Agreement,
GPA and Sale deed. Only when defendant No.1 filed written
statement in O.S.No.1012/2008, they came to know about
the said documents. In O.S.No.15195/2002 in
O.S.No.5586/2006 and in O.S.No.306/2008, defendant
No.1 never pleaded about the Sale Agreement dated
17122001 and about the GPA. Therefore, it is stated that
18
the alleged Sale Agreement dated 17122001 is a concocted
document. Second defendant is none other than the wife of
defendant No.1. With regard to fraud played by defendant
Nos.1 and 2, the plaintiffs have filed PCR No.26183/2009.
The same is pending. Pleading cause of action to the suit
at para No.18 of the plaint, it is prayed to declare that
plaintiff No.1 is the owner of plaint 'B' schedule property to
declare that the Agreement to sell dated 17122001, the
Sale Deed dated 8102007 and the GPA dated 18122001
in respect of 'B' schedule property are null and void and not
binding on the plaintiffs. Finally, for permanent injunction
to restrain the defendants from interfering with possession
of plaintiffs over 'B' schedule property.
6. Defendant Nos.1 and 2 have filed common written
statement. Plaintiff Nos.2 and 3 are not necessary parties
19
to the suit. Therefore, suit against them has to be
dismissed. The suit is barred by limitation. The Sale Deed
in respect of 'B' schedule property was registered on
18102007. Therefore, the suit filed beyond three years is
barred by time.
7. Plaintiff No.1 was in dire need of financial
assistance and secured financial assistance in a sum of
Rs.10 lakhs from Grain Merchant Cooperative Bank
Limited, Chamarajpet, Bengaluru. Plaintiff No.1 being
unable to discharge the financial obligation offered to sell 'B'
schedule property to defendant No.1. Accordingly, a
registered Sale Agreement came to be executed on
17122001. But, under the said Sale Agreement, schedule
property could not be handed over. Therefore, it was agreed
to execute a registered Lease Deed dated 18122001.
20
Though, Agreement to sell was executed on 17122001 and
the Lease Deed was executed on 18122001 both the
documents were presented before the office of the Sub
Registrar simultaneously. Plaintiff No.1 having received
monies in excess of sale consideration also executed GPA in
favour of defendant No.2 on 18122001, authorizing her to
deal with the said property. When the sub tenant of a
portion of 'B' schedule property was refused to pay rent and
vacate the premises, defendant No.1 filed O.S.No.306/2008.
The suit was decreed. RFA No.1960/2011 filed by the sub
tenant was dismissed. Defendant No.1 filed
Ex.P.No.2077/2013 and recovered the dues. The plaintiffs
came to know about the GPA, Sale Agreement and Sale
Deed only when this defendant filed written statement in
O.S.No.1012/2008 is denied. In fact, the plaintiffs have not
revealed about these three documents in
21
O.S.No.1012/2008. Under the Agreement to sell plaintiff
Nos.1 and 2 have received a sum of Rs.5,50,000/ and
balance of Rs.2,50,000/ was to be retained to pay it in
favour of Grain Merchant Cooperative Society Limited. In
all plaintiff No.1 has received a sum of Rs.9 lakhs from
defendant No.1 as per Agreement to sell and Lease Deed.
The rest of the plaint averments are denied as false and
plaintiffs are invited strictly to prove the same. The cause of
action pleaded to the suit is denied. Accordingly, it is
prayed to dismiss the suit with cost.
8. Based on the pleadings of the parties, the following
issues are framed:
ISSUES IN O.S.NO.9963/2015
1. Whether the plaintiff No.1 proves that he
also owner of the 'B' schedule property?
2. Whether plaintiff No.1 further proves that
22
the agreement sale dated 1712001 and
saledeed dated 18102007 bearing
No.3679/200102 and also document
No.2583/200708 in favour of 1st
defendant are null and void not binding on
plaintiffs?
3. Whether the plaintiff No.1 further proves
that GPA deed dated 18122001 in favour
of 2nd defendant in respect of schedule 'B'
property also null and void and not
binding on plaintiffs?
4. Whether the plaintiff No.1 further proves
that he is entitled permanent injunction
against defendant not to interfere the same
in respect of 'B' schedule property is in
entitled?
5. Whether the defendant proves that the suit
of plaintiffs barred by the limitation?
6. Whether the defendant proves that plaintiff
No.1 unable to discharge the debt of Rs.10
lakh and offered to sell suit schedule
property to the defendant and he has sold
the property as per the agreement deed
dated 17.12.2001 and also registered
document No.3697/200102 in the office of
SubRegistrar at Jayanagar as per
23
Document No.1 and thereby suit of the
plaintiff is not maintainable?
7. Whether the defendant further proves that
the lease deed dated 18.12.2001 and
registered documents No.3696/200102
and agreement sale as putted on
17.12.200102 and lease deed dated
18.12.200102, both documents submitted
for the SubRegistrar at Jayanagar as per
the document No.2. Hence, the suit of
plaintiffs is not maintainable?
8. Whether the defendant further proves that
they have executed the agreement, GPA in
favour of 1st and 2nd defendants on
18.12.2001 authorizing him to deal with
the W/s, property as per document No.3.
Hence, the suit of plaintiffs is not
maintainable?
9. Whether the defendant further proves t hat
the defendants have produced the
documents in respect of Katha extract as
per documents Nos.4, 5 & 6. Hence, the
suit of plaintiff is not maintainable?
10. Whether the defendant further proves that
the defendant has registered the suit
leased property in favour of M/s.Unicard
24
Marketing private Limited and filed a suit
for ejectment No.1012/2008 as per
documents No.7?
11. What Order or Decree?
9. As per the order sheet dated 2832018 of both the
suits, both the suits are clubbed together. Accordingly,
evidence is recorded in O.S.No.1012/2008.
10. Plaintiff No.3 is examined as P.W.1 and got
marked Exs.P.1 to P.19 at the earliest. In the cross
examination of D.W.1, the Learned Advocate for the
plaintiffs got marked Exs.P.20 & P.21 on 1032020. Again,
three more documents were confronted on 1912021. They
are mistakenly marked at Exs.P.21 and P.22 instead of
Ex.P.22, Ex.P.23 and P.24. Accordingly, the said mistake is
rectified this day (on the date of dictation).
25
Defendant No.1 of both the cases is examined as
D.W.1 and got marked at Exs.D.1 to D.56.
11. Heard both the Advocates
12. My findings to the above issues in
O.S.No.1012/2008 are as follows:
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6 : In the affirmative
Issue No.7 : As per final order for the
following:
26
13. My findings to the above issues in
O.S.No.9963/2015 are as follows:
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the negative
Issue No.5 : In the negative
Issue No.6 : In the negative
Issue No.7 : In the negative
Issue No.8 : In the negative
Issue No.9 : No need to answer
this issue
Issue No.10: No need to answer
this issue
Issue No.11: As per final Order for the
following:
27
REASONS
14. Issue Nos.1 to 3, 6 to 8 of O.S.No.9963/2015:
According to the plaintiffs, they have executed a registered
Lease Deed in favour of defendant No.1 for a period of five
years in respect of 'B' schedule property, a portion of first
floor measuring 1600 Sq.ft out of 'A' schedule property
bearing No.462/34 situated at 12th cross, Wilson garden,
Bengaluru. It is the case of the plaintiffs that under the
Lease Deed dated 18122001, a sum of Rs.1,00,000/ is
mentioned as security deposit but they have received a sum
of Rs.4,50,000/ from defendant No.1. The said registered
Lease Deed is marked at Ex.P.1. The original of the same is
marked by defendant No.1 at Ex.D2. As per recitals of this
document, the period of lease is five years. It is mentioned
that a sum of Rs.1,00,000/ is paid towards security
deposit and monthly rent is Rs.1,000/ p.m This Ex.P.1
28
which is = Ex.D.2 is not in dispute except about security
deposit.
15. It is the case of the plaintiffs that they have never
executed Ex.P.7 registered Sale Agreement on 17122001
to defendant No.1 for a sum of Rs.8,00,000/, in respect of
the very same 'B' schedule property. The original of the
same is marked at Ex.D.1. It is also the case of the
plaintiffs that they have never executed Ex.D.3 unregistered
GPA in favour of the wife of defendant No.1 who is arrayed
as defendant No.2. The original of said GPA dated
18122001 is marked at Ex.D.3. It is also the case of the
plaintiffs that they have not at all executed Ex.P.9= Ex.D.25
registered Sale Deed on 18102007 in favour of defendant
No.1. Therefore, it is the case of the plaintiffs that plaintiff
No.1 is the owner of suit 'B' schedule property. They have
only executed a Lease deed on 18122001. They have
29
never executed registered Sale Agreement on 17122001
and an unregistered GPA in favour of defendant No.2 on
18122001.
16. On the other hand, it is the case of the defendants
that plaintiff No.1 indebted to Grain Merchant Bank for a
um of Rs.10 lakhs and he was also required to pay a sum of
Rs.4,25,000/ to Indira Ramanna the erstwhile tenant and
therefore, they have executed a registered Sale Agreement
on 17122001 and an unregistered GPA on 18122001
and a Lease Deed on 18122001. According to the
defendants, as possession could not be delivered under the
registered Sale agreement, registered Lease Deed was
executed by the plaintiffs in respect of plaint 'B' schedule
property. Therefore, discussing all these issues together
found necessary for the Court.
30
17. It is made clear that there is no dispute about
execution and registration of Lease Deed dated 18122001
which is marked at Ex.P.1= Ex.D.2. It is the case of the
defendants that due to financial constraints and family
necessities, an Agreement of Sale was executed on
17122001 as per Ex.P.7 = Ex.D.1. At this stage, it is
necessary to consider the correctness of Ex.D.1 - the
registered Sale Agreement dated 17122001. Ex.D.1 is a
registered Sale Agreement dated 17122001. It is stated
that the plaintiffs have executed this document in favour of
defendant No.1. In this document, at page No.4, Sl.Nos.1 &
2, it is recited like this:
1. The purchaser has this day paid to the
Vendors a sum of Rs.5,50,000/ (Rupees
Five Lakhs and Fifty Thousand only) by
cash before the under signed witnesses
and the Vendors have acknowledged the
receipt of the said sale consideration of
Rs.5,50,000/
31
2. The balance sum of Rs.2,50,000/
(Rupees Two Lakhs and Fifty Thousand
only) shall be retained by the Purchaser
towards the discharge of the existing
loan and the Vendors hereby direct the
purchaser to pay the existing loan
amount to the Grain Merchants Co
operative Bank Ltd., Chamrajpet,
Bangalore, and get the existing mortgage
discharged for and on behalf of the
Vendors.
Though this document is alleged to have been
executed on 17122001. But , the stamp was purchased
by Mr.Inder Bohra - defendant No.1 on 18122001. At the
backside of page Nos.1 & 2 of Ex.D.1, it is clearly stated
that Sl.No.5640 and Sl.No.5641 were purchased by
defendant No.1 by paying a sum of Rs.100/ each on
18122001. When the stamp paper was purchased on
18122001, it is impossible for the plaintiffs to execute the
Sale Agreement on 17122001. This is a serious issue and
32
therefore, the evidence of the parties has to be analysed
keeping this fact in mind.
18. Ex.P.7 is the certified copy of the Sale Agreement
dated 17122001 which is = Ex.D.1. Whereas, at page
No.4 of Ex.P.7, the two conditions inserted reads like this:
1. The purchaser has this day paid to the
Vendors a sum of Rs.2,50,000/ (Rupees
Two Lakhs and Fifty Thousand only) by
cash before the under signed witnesses
and the Vendors have acknowledged the
receipt of the said sale consideration of
Rs.2,50,000/.
2. The balance sum of Rs.5,50,000/
(Rupees Five Lakhs and Fifty Thousand
only) shall be retained by the Purchaser
towards the discharge of the existing
loan and the Vendors hereby direct the
purchaser to pay the existing loan
amount to the Grain Merchants Co
operative Bank Ltd., Chamrajpet,
Bangalore, and get the existing mortgage
discharged for and on behalf of the
Vendors.
33
One can see the change of paragraphs in Ex.D.1 and
Ex.P.7. In Ex.D.1 it is stated that a sum of Rs.5,50,000/ is
paid. Whereas, in Ex.P.7, it is mentioned as a sum of
Rs.2,50,000/ is paid. This is another reason to doubt the
registered Sale Agreement. Though, as per Exs.D.1 and
D.7, defendant No.1 is under an obligation to pay the
remaining sale consideration to the Grain Merchants
Cooperative Society Limited. Defendant No.1 has not
cleared the said mortgage security amount which he admits
in his crossexamination. Based on Ex.D.3, the GPA alleged
to have been executed by the plaintiffs in favour of
defendant No.2 who is he wife of defendant No.1 has
executed a Sale Deed in favour of her husband i.e.,
defendant No.1 as per Ex.D.25. The plaintiffs in both the
suits are common. Defendant No.1 in both the suits is
34
common i.e., Mr.Inder Bohra. In O.S.No.1012/2015,
defendant No.2 is the wife of defendant No.1.
19. Plaintiff No.3 is examined as P.W.1 and in his
evidence, Exs.P.1 to P.24 are marked. The Learned Counsel
for the defendants has crossexamined P.W.1 on several
dates. On 1122019, P.W.1 admits that in general his
parents used to sign any document after reading the
contents. P.W.1 has stated that on the said date, his father
has not read the document. He admits that on 18122001
Lease Deed is executed in favour of defendant No.1. P.W.1
has deposed that hurriedly their signatures were taken
saying that officers of the SubRegistrar will go for lunch.
He denied a suggestion that they have signed to the
document only after reading the contents. P.W.1 admits
that they have raised Rs.10 lakhs loan from Grain Merchant
35
Cooperative Bank. He denied a suggestion that to clear the
said loan, they agreed to execute a Sale Agreement as per
Ex.P.8 on 18122001. He denied a suggestion that on the
date of Ex.P.8, the registered Sale Agreement a sum of
Rs.5,50,000/ is received by him. He denied a suggestion
that as possession could not be delivered under Ex.P.8
which is = Ex.D.1, the registered Sale agreement, Ex.P.1
registered lease deed was executed. At page No.18, P.W.1
has deposed that his father had received a sum of
Rs.4,25,000/ from Indira Ramanna the earlier tenant
towards security deposit. P.W.1 has stated that the said
amount is paid to Indira Ramanna through defendant No.1.
It is repeatedly the case of the plaintiffs that they have
received only a sum of Rs. 4,50,000/ from defendant No.1
and they have executed only one lease deed which is
marked at Ex.P.1 on 18122001. The same is repeated by
36
P.W.1 in his crossexamination at page No.18 at para No.2.
At page No.19, at para No.2, fir the first time, it is suggested
that defendant No.2 lent money to his father on his request.
There was a loan transaction between plaintiffs and
defendant No.1 is not at all pleaded in the written
statement. Therefore, this suggestion cannot be accepted.
At page No.20, P.W.1 has deposed that two days prior to
Ex.P.1, draft lease deed was given to his father by defendant
No.1, showing security deposit as Rs.1,00,000/. He has
further deposed that on the date of Ex.P.1, the registered
lease deed dated 18122001, his father received only a sum
of Rs.4,50,000/ from defendant No.1. He repeats the same
in the next para No.7 of the crossexamination also. P.W.1
at page No.20, for the first time has stated that on 1812
2001 they have executed two lease deeds (the same is also
not pleaded). At page No.21, P.W.1 has deposed that his
37
father has cleared Rs.10 lakhs loan to Grain Merchant Co
operative Bank on 2512006. At page No.22, in the
penultimate line, it is suggested to P.W.1 like this:
"It is false to suggest that defendant No.1
paid a sum of Rs.4,50,000/as a loan".
At page No.23, it is again suggested that his father
borrowed a sum of Rs.4,50,000/ from defendant No.1 to
repay the same to Indira Ramanna. At this stage itself, it is
to be made clear that plaintiff No.1 borrowed a sum of
Rs.4,50,000/ from defendant No.1 is not at all pleaded in
the written statement of defendant Nos.1 and 2. Therefore,
this suggestion is an after thought or an improvement from
the side of the defendants at the time of trial to over come
the several payments falsely shown in Ex.D.1 - Sale
Agreement and Ex.D.2 - the Lease Deed.
38
20. At page No.23, in the second Para, P.W.1 has
deposed that they have executed two Lease Deeds. He has
stated that he and his parents have signed to the said
documents. He denied a suggestion that out of the two
documents, one document is registered Sale Agreement and
another one is registered Lease Deed. He further denied a
suggestion at para No.24 of the crossexamination that
under the Sale Agreement a sum of Rs.4,50,000/ and
under the Lease Deed a sum of Rs.1,00,000/ is received by
them. It is further suggested that on the date of registration
of the two documents, defendant No.1 has paid a sum of
Rs.5,50,000/. P.W.1 denied a suggestion that defendant
No.1 has paid a sum of Rs.10 lakhs to his father. This fact
is also not pleaded in the written statement. Therefore, it is
a false suggestion. P.W.1 denied a suggestion that sale
consideration for the Sale Agreement was fixed at Rs.8
39
lakhs and his father received a sum of Rs.2,50,000/ on the
next day. At page No.25, P.W.1 denied a suggestion that
after the payment of sale price, he and his parents have
executed GPA in favour of defendant No.2. At page No.25
itself, P.W.1 in the third paragraph has deposed that his
father has paid a sum of Rs.4,50,000/ to defendant by way
of D.D. It is in the sense that his father had received a sum
of Rs.4,50,000/ from defendant No.1 and the same is
repaid. In this context, the Learned Counsel for the
defendants has suggested like this:
"It is false to suggest that refund of
R.4,50,000/ was in connection with the
transaction with Indira Ramanna only".
P.W.1 in the initial crossexamination itself has deposed
that a sum of Rs.4,50,000/ is paid to Indira Ramanna
through defendant No.1. Therefore, the amount paid by
40
plaintiff No.1 to defendant No.1 by way of DD for a sum of
Rs.4,50,000/ was the amount repaid which was taken as
security deposit. But, the defendants want to connect the
said repayment to the transaction of Indira Ramanna.
P.W.1 admits about the proceedings of O.S.No.306/2008
which was a suit filed by defendant No.1 against his sub
tenant. P.W.1 denied a suggestion that as on the date of
execution of registered Sale Agreement itself, they were
aware of the same. P.W.1 has contended that they came to
know about the Sale Agreement, GPA and Sale Deed only
when defendant No.1 filed written statement in
O.S.No.1012/2008. It appears the Learned Counsel for the
defendants is in a confusion. Because, GPA is in the name
of defendant No.2 wife of defendant No.1. Defendant No.2
has executed Sale Deed as per Ex.D.25 in favour of her
husband defendant No.1. But, vice versa is suggested to
41
P.W.1 which is only a confusion. P.W.1 at page No.28,
denied a suggestion that on the same day, i.e., on
18122001, they have executed Sale Agreement, registered
Lease Deed and General Power of Attorney. At page No.31,
P.W.1 admits the signature of himself and his parents on
Ex.D3, D.3(a), the original GPA dated 18122001. P.W.1
admits that in O.S.No.306/2008, the sub tenant handed
over keys of suit property in the open Court to defendant
No.1. The plaintiffs are not disputing possession of
defendants over 'B' schedule property. Accordingly, they
have filed O.S.No.1012/2008 for ejectment, for damages
and for arrears of rent.
21. Defendant No.1 is examined as D.W.1. He has
filed his affidavit evidence reiterating the averments of
written statement. He has got marked Exs.D.1 to D.56. He
42
was crossexamined by the Learned Advocate for plaintiffs.
At page No.16, he admits that as requested by the plaintiffs,
he has paid lease amount of Rs.4,50,000/ to Indira
Ramanna by cash. That is exactly what has been he stated
by P.W.1 in his crossexamination. P.W.1 has deposed that
through defendant No.1 they have paid a sum of
Rs.4,50,000/ to Indira Ramanna. The said fact is
established from the answer of D.W.1. At page No.17,
D.W.1 has stated that the Advocate/document writer
Mr.Mohan Desai brought stamp paper. He has deposed
that Mohan Desai is practicing at Mayo hall. D.W.1 knew
him for five years. D.W.1 has stated that Mr.Mohan Desai
prepared document in the presence of plaintiffs and
defendant No.1. He has deposed that he and plaintiffs have
given instructions to the Advocate, at about 1030 am.
D.W.1 admits that he had not paid any money in advance to
43
the Advocate to purchase stamp paper. He has deposed
that at about 1145 a.m., he put his signature on the
document. He only requested the plaintiffs to sign the
document. He has stated that one Chandrashekar and one
Noorulla have signed as witness. At page No.19, in the
second paragraph, D.W.1 has deposed that he do not know
how much money the plaintiffs have borrowed from the
Grain Merchants Credit Cooperative Bank. He has
deposed that loan was cleared by the plaintiffs in the year
2006. But, D.W.1 never says that he has cleared loan of
plaintiffs from Grain Merchants Credit Cooperative Society.
Because, as per the recitals of Ex.D.1 which is = Ex.P.7,
defendant No.1 has undertaken to clear the loan and he had
undertaken to discharge the mortgage of the property. This
goes to show that the Sale Agreement which is marked at
Exs.D.1 & Ex.D.3 is only sham documents and it is created
44
by defendant No.1. At the cost of repetition, Ex.D.1 the Sale
Agreement was executed on 17122001 but the stamp
paper was purchased on 18122001. It can be certainly
said that Ex.D.1 is a concocted document. When there is a
registered Lease Deed on 18122001, what was the
necessity for the plaintiffs to execute a registered Sale
Agreement in favour of defendant No.1. Defendant No.1 as
per the Lease Deed is a lessee and as per the Sale
Agreement he is an agreement holder. This proposition in
respect of same property by a single person cannot be
acceptable.
22. At page No.20, D.W.1 has deposed that he do not
have any objection to examine two witnesses and the
Advocate Mr.Mohan Desai before the Court. But, in the
same page D.W.1 has deposed like this:
45
"I do not know whether
Chandashekar, Noorulla and Advocate
Mohan Desai are alive or not".
This is the audacity of D.W.1. He has wantonly not
examined any witness to prove due execution of Sale
Agreement, GPA and passing of sale consideration. He has
intentionally avoided his wife to entering box to speak
about GPA. In fact, based on GPA, defendant No.2 has
executed Sale Deed in favour of defendant No.1. Therefore,
defendant No.2 ought to have entered the witness box.
Except the evidence of D.W.1, the other best available
evidence is withheld by defendant No.1 intentionally.
Therefore, an adverse inference has to be drawn against the
defendants.
23. At page No.21, D.W.1 has stated that he do not
know when the plaintiffs have borrowed loan from Grain
46
Merchants Cooperative Bank. He do not know how much
they have borrowed. He do not know what was the period
for repayment of loan. He admits that plaintiffs have
mortgaged the entire suit property to the said Bank. He
admits that the plaintiffs have borrowed loan by depositing
title deeds. In the next line, he has deposed like this:
"I do not know who is in custody of
originals of suit property. May be plaintiffs
are in possession of the same".
The GPA has not collected originals from the plaintiffs
with regard to suit property. She simply obtained GPA and
sells the property in favour of her husband. The
defendants are not in possession of original title deeds of
suit property. This goes to show that the registered Sale
Agreement marked at Ex.D.1, unregistered GPA marked at
47
Ex.D.3 and the registered Sale Deed as per Ex.D.25 are
created, concocted by playing fraud.
24. D.W.1 admits that suit 'A' schedule property
consists of three floors. He admits that there are shops in
the first floor. At page No.31, he claimed ignorance about
plaintiffs earning income of Rs.2 lakhs during 2001 by way
of rents. At page No.31, D.W.1 has deposed that Sale
Agreement transaction was concluded on 17122001. On
the same day, the plaintiffs were present and signed. Some
witnesses were also present. But, he do not remember the
names of the witnesses who were present on the said date.
At page No.31, he has stated that Mohan Desai Advocate
prepared the documents. At page No.32, D.W.1 has stated
that he do not know the address of Mohan Desai. He has
deposed that on the date of Sale Agreement there was no
discussion with regard to handing over possession. He has
48
further stated that as Indira Ramanna was in possession of
the property, possession was not handed over. Therefore,
according to D.W.1, they entered into a registered Lease
Deed on 1812001. When possession could not be taken
under the Sale Agreement, how the defendant No.1 can
take possession under the Lease Deed is not clearly
explained before the Court. At page No.33 in the second
para, he has stated that he had no difficulty to get the
registered Sale Deed as on the date of Sale Agreement. But,
defendant No.1 got executed a GPA in favour of his wife and
in the year 2007, he takes the Sale Deed from his wife.
D.W.1 has stated that as there was loan over the suit
property, Sale Deed was not taken on 18122001. As per
the Sale Agreement, it is the defendant No.1 who has to
clear the loan tot he Bank. But, it is not at all the case of
defendant No.1 that he has cleared the loan of the plaintiffs
49
at Grain Merchants Cooperative Bank. This goes to show
that defendant No.1 has created Sale agreement, GPA and
the Sale deed.
25. At page No.33, D.W.1 has deposed that he do not
know who is the notary public of GPA. He denied a
suggestion that plaintiffs were never present before the
notary to execute GPA. He denied a suggestion that
plaintiffs have not executed GPA. He denied a suggestion
that the plaintiffs have not executed a Sale Agreement.
D.W.1 has deposed that he had no difficulty to get the GPA
registered. What was the necessity for defendant No.2 to
take GPA from the plaintiffs is not at all explained before
the Court. Because, there is already an registered Sale
Agreement in favour of defendant No.1 by the plaintiffs.
Then why the plaintiffs can direct defendant No.2 to
50
execute a Sale Deed in favour of her husband that too by
executing GPA in her favour. This is all the game plan of
defendant No.1, taking confidence of the plaintiffs and on
the premise of taking a registered Lease Deed, has gone to
the extent of creating registered Sale Agreement and GPA.
In Ex.D.1, the registered Sale Agreement six months time is
fixed for completion of sale deed. At page No.34, D.W.1 has
deposed that he has not issued a written notice to the
plaintiffs asking them to execute the Sale Deed. He has
nextly replied like this:
"But I have orally requested. I do not
remember the date of oral requests".
This goes to show that defendant No.1 is giving a false
version before the Court. When on the date of Ex.D.1
registered Sale Agreement there is already a GPA dated
18122001 in favour of his wife and then why defendant
51
No.1 wants to issue a legal notice or request the plaintiffs to
execute a Sale Deed. This is another circumstance to state
that defendant No.1 is behind the creation of documents.
26. At page No.35, he admits about filing suits like
O.S.15491/2004, O.S.5586/2006. He further admits that
in the said suit, he has not whispered about the registered
Sale agreement. In the next line, he has deposed like this:
"It may be true that I have revealed
about sale agreement in the present suit
only".
This aspect will be discussed while dealing with
documentary evidence. At page No.35, D.W.1 has deposed
that on 18122001, the plaintiffs have received a sum of
Rs.1 lakh towards Lease Deed, a sum of rs.4,50,000/ to
pay to Indira Ramanna. This is not at all pleaded by
defendants in their written statement. No where in the
52
written statement it is pleaded that as on 18122001
defendant No.1 has paid Rs.1 lakh to the plaintiffs and a
sum of Rs.4,50,000/ to Indira Ramanna. Therefore, it can
be said that it is a false evidence given by defendant No.1.
He denied a suggestion that by misrepresenting and
misusing the plaintiffs, he has created GPA and sale
agreement. He has deposed that he do not know whether
the plaintiffs had no necessity to sell the suit property.
27. At page No.36, D.W.1 has deposed that the
transaction between himself and the plaintiffs about
payment of Rs.11 lakhs is reflected in his income tax
returns. D.W.1 has further stated that at the time of GPA
also, he had paid Rs.2,50,000/ to the plaintiffs. However,
Ex.D.3, the original GPA is silent about passing of any
consideration. He denied a suggestion that the plaintiffs
53
had to pay a sum of Rs.4,25,000/ to Indira Ramanna and
as such, they have executed lease deed for a sum of
Rs.4,50,000/. In the next line, D.W.1 has deposed like
this:
"It is true to suggest that on 792003
a sum of Rs.1,00,000/ on 1692005
a sum of Rs.3,00,000/, on 1012
2005 a sum of Rs.50,000/ is paid by
the plaintiffs".
D.W.1 very clearly admits about payment of Rs.4,50,000/
by the plaintiffs on three different dates. Therefore,
whatever the plaintiffs have received from defendant No.1,
they have repaid, can be inferred from these attending
circumstances. Where as, D.W.1 in the very next sentence
has stated that the said payment is with regard to loan
transaction. He has stated that he has a document to show
that a sum of Rs.4,50,000/ was paid towards loan. But,
no such document is produced before the Court. The Court
54
has already stated that the same is not pleaded by the
defendants in his written statement. He also deposed that
the said loan transaction is also reflected in his income tax
returns. But, he has not produced the said document also
to accept his case even though it is not pleaded.
28. D.W.1 admits the truth at page No.37 in the
penultimate line which reads like this:
"I have not paid any amount to
plaintiffs on the date of registration
of sale agreement".
This is a clear admission given by D.W.1 admitting the
entire case of the plaintiffs.
29. It is the case of the plaintiffs that they have not
executed registered Sale agreement. It is the case of the
plaintiffs that they have not received any sale
55
consideration. As per recitals of Ex.D.1 a sum of
Rs.5,50,000/ is paid to plaintiffs by defendant No.1. But,
D.W.1 who is a party to Ex.D.1 document in the witness
box has stated that he has not paid any amount to the
plaintiffs on the date of registered Sale Agreement. It is
enough to hold that the defendants have created the
registered Sale Agreement. Therefore, when the registered
Sale Agreement itself is a concocted and fraudulent
document, defendant No.2 does not derive any right under
GPA to execute Sale Deed in favour of her husband as per
Ex.D.25. The very basis of Ex.D.1 is doubtful. It is not a
document in the eye of law. Therefore, under Ex.D.25,
defendant No.1 has not derived any right, title or interest
over the 'B' schedule property. Ex.D.3 is not at all proved
before the Court. Defendant No.2 is not examined before
56
the Court. Therefore, with all authority, it can be said that
Ex.D.3 is also a created document.
30. At page No.40, D.W.1 has deposed like this:
"It is true to suggest that all the
original title deeds of the property
are in the custody of the plaintiffs".
When defendant No.1 has become owner of suit
property as per Ex.D.25, why did he allowed the original
title deeds in the custody of the plaintiffs. Even to this day,
defendant No.1 has not made any efforts to seek original
title deeds from the plaintiffs. This silence is on the part of
defendant No.1 goes to show that he wanted to conceal
about Sale Agreement, GPA and Sale Deed as much time as
possible. When the plaintiffs filed this O.S.No.1012/2008,
he was forced to reveal about these documents. At page
No.40 he denied a suggestion that even today, plaintiff No.1
57
is the owner of 'B' schedule property. D.W.1 asserts that he
is the owner of 'B' schedule property.
31. Ex.D.4 is the certified copy of the order sheet in
Ex.Case No.2077/2013. Defendant No.1 had filed the said
Ex.petition against his sub tenant who is defendant No.2 in
O.S.No.1012/2008. Ex.D.5 is the copy of the Ex.petition in
Ex. Petition No.2077/2013. Ex.D.6 is a letter by
Sri.P.B.Balaji Advocate about settlement reported in the
above said Ex.petition along with joint memo. Ex.D.7 is the
Order passed in O.S.No.306/2008. The said suit was filed
by defendant No.1 Inder Bohra against the sub tenant for
ejectment and for arrears of rent. Ex.D.8 is the order sheet
of the said suit. As per Exs.D.7 & D.8, O.S.No.306/2008 is
decreed. The plaint in the said suit is marked at Ex.D.30.
Written statement in the said suit is marked at Ex.D.31.
58
Issues framed in the said suit is marked at Ex.D.32. One
Interlocutory application is marked at Ex.D.33. Objection
filed to the said I.A is marked at Ex.D.34. Order passed on
I.A.No.3 in O.S.No.306/2008 is marked at Ex.D.35. The
application filed by plaintiffs herein in the said suit under
Order 1 Rule 10 CPC is marked at Ex.D.36. Objection filed
to the said I.A. is marked at Ex.D.37. Another application
filed in the aid suit is marked at Ex.D.38. Objection to the
said I.A is marked at Ex.D.39. Order passed on I.A.No.2 in
O.S.No.306/2008 is marked at Ex.D.40. Affidavit evidence
of Inder Bohra in the said suit is marked at Ex.D.41. Legal
notice issued by Inder Bohra in the said suit against his
sub tenant is marked at Ex.D.42. Reply to the said notice
is marked at Ex.D.43. Postal acknowledgments and postal
cover are marked at Exs.D.44 to 46. I.A.l filed by the sub
tenant under Section 148 CPC in the said suit is marked at
59
Ex.D.49. Decree passed in O.S.No.306/2008 is marked at
Ex.D.50. Memo filed in the said suit is marked at Ex.D.51.
Vakalath of plaintiffs herein in the said suit along with
impleading application is marked at Ex.D.52. Ex.D.53 is
the certified copy of the Regular First Appeal memorandum.
Ex.D.54 is the Judgment passed in RFA No.1960/2011
dated 2272013. Ex.D.55 is the certified copy of the
decree passed in the said RFA. From all these documents
of O.S.No.306/2008 it appears that defendant No.1 was
fighting against his subtenant since 2008 to 2016. As on
the date of O.S.No.306/2008, defendant No.1 has already
become owner of suit 'B' property in view of Ex.D.25. But,
defendant No.1 has not whispered about his sale deed in
the said proceedings. In fact, the plaintiffs herein wanted
to implead in the said suit. But defendant No.1 seriously
opposed the said application and accordingly, the
60
application was rejected. Why defendant No.1 though he
has become owner of the suit property in the year 2007
itself has chosen to contest O.S.No.306/2008 only as a
lessee. In O.S.No.306/2008 proceedings, defendant No.1
projected himself as a lessee and not as the owner of the
property. This goes to show that the sale agreement, GPA
and the sale deed never acted upon. On the other hand,
the Lease Deed was acted upon and it is based on the said
document only. Defendant No.1 has filed
O.S.No.306/2008 and various other suits. In the cross
examination D.W.1 very clearly admits that he has not
whispered about the sale deed, sale agreement and GPA in
the earlier proceedings. This conduct of defendant No.1
goes to show that he was guilty of concocting documents
and therefore, he could not wanted to bring them before the
Court of Law. However, he was forced to reveal about those
61
documents in the present proceedings. Defendant No.1 has
produced all these documents of O.S.No.306/2008 to
contend that he is taking care of the suit property.
Defendant No.1 is not taking care of the property. He has
collected very good rents from his sub tenant. But, he is
not ready to pay a sum of Rs.1,000/ to the plaintiffs
towards monthly rent. This is the attitude of defendant
No.1. Defendant No.1 is not protecting suit property. On
the other hand, he is making all efforts to grab suit
property from the plaintiffs by fabricating documents. It is
true that as per Exs.D.9 to D.20, defendant No.1 has paid
tax to the suit property. It is true that as per Ex.D.1, he
has paid a sum of Rs.1,17,000/ towards property tax.
Exs.D.23 and D.24 are the Katha certificate and Katha
extract standing in the name of plaintiffs in respect of suit
property. All these revenue documents are the out come of
62
concocted documents like GPA, Sale Agreement and Sale
Deed. The Court is of the opinion that the registered Sale
Agreement, GPA and registered Sale Deed are created and
no right has accrued in favour of defendant No.1.
Therefore, no importance can be given to these revenue
documents.
32. To own property or acquire property is not a sin.
But, property should be acquired legally and morally and
not by illegal means upon practicing fraud as in the present
case. In the present suits, defendant No.1 has pleaded in
the written statement about doctrine of merger. He has
very clearly pleaded that from the date of Ex.D.25 he is not
a lessee under the plaintiffs but he is the owner of suit 'B'
schedule property. But, in spite of the same, he continued
to represent as a lessee in O.S.No.306/2008 until 2016. In
63
para No.9 of the written statement defendants have pleaded
that lease come to an end. But, he continued to project
himself as a lessee in O.S.No.306/2008. Therefore, this
Court has no hesitation to hold that registered sale
agreement, GPA and registered sale deed are all concocted
and fraudulent documents. Therefore, plaintiff No.1 is the
owner of the suit schedule property. Accordingly, issue
Nos.1 to 3 are answered in the affirmative. Issue Nos.6
to 8 are answered in the negative.
33. Issue No.4 in O.S.No.9663/2015: The very
plaintiffs have filed O.S.No.1012/2018 against the
defendants praying the Court to direct the defendants to
quit, deliver and vacant possession of 'B' schedule property.
Therefore, the plaintiffs are not entitled for the relief of
64
permanent injunction in the present suit. Accordingly,
issue No.4 is answered in the negative.
34. Issue No.5 in O.S.No.9663/2015: While
discussing issue Nos.1 to 3 and 6 to 8, this Court has held
that the Sale Agreement, GPA and Sale Deed are created,
fraudulent and sham documents. Therefore, question of
limitation does not arise. Because, they are not documents
in the eye of law and as such, they are liable to be
cancelled. Even otherwise, it is the case of the plaintiffs
that they came to know about those documents only when
the defendants filed written statement in
O.S.No.1012/2008. In the said such, defendants have filed
written statement on 2582008. On 2482011, the
plaintiffs filed P.Mis.29/11 and presented
O.S.No.9963/2015. The order sheet of P.Misc.29/11
65
discloses that in the year 2015, the plaintiffs paid court fee
and accordingly, P.Mis. was renumbered as
O.S.No.9963/2015. From the date of knowledge within
three years, the plaintiffs have filed the suit. As such, the
Court is of the opinion that the suit is in time. Accordingly,
issue No.5 is answered in the negative.
35. Issue Nos.9 & 10 of O.S.No.9663/2015:
According to the Court, these issues are wrongly
framed by my Predecessor in office. There is no need to
answer these issues.
36. Issue Nos.1 to 5 in O.S.No.1012/2008: The
Learned Counsel for defendant No.1 has argued that as a
consequence of execution of Sale Deed by the plaintiffs in
favour of defendant No.1 as per Ex.D.25, the suit of the
plaintiffs for ejectment, arrears of rent and for damages as
66
become infructuous and not maintainable. He has further
pointed out the evidence of P.W.1. where under, the
execution of Exs.D.1 to D.3 documents is admitted.
Therefore, defendant No.1 has discharged his burden of
proof. He has further contended that plaintiff No.1 is
avoided from entering the witness box. No medical
documents are produced before the Court. It is further
argued that as per Ex.D.25, defendant No.1 is the absolute
owner of plaint 'B' schedule property and he is no more a
tenant in view of doctrine of merger and as such, the suit
for ejectment be dismissed as not maintainable. With
regard to title deeds of the suit property he has argued that
only a portion of property is purchased by defendant No.1
and there is no necessity of possessing title documents.
While discussing issue Nos.1 to 3 and 5 to 8 in
O.SNo.9963/2015, the Court has elaborately discussed
67
about the execution of Sale Agreement, GPA and the Sale
deed. Mere admission of signatures by P.W.1 in the cross
examination will not prove the validity of the Sale
Agreement, GPA and the Sale Deed. In detail, this Court
has assigned reasons and held that the above three
documents are sham documents. At this point it is also
necessary to point out the description of property in
Ex.D.25 - Sale Deed executed by defendant No.2 in favour
of defendant No.1 i.e., by wife to her husband.
SCHEUDLE 'B' PROPERTY IN EX.D.25
All that piece and parcel of residential
unit being a part of the first floor portion
of schedule 'A' property measuring 1600
Sq.feet along with proportionate
undivided right, title and interest in
the land portion of 'A' schedule
property.
68
This recital is not found in in the registered Lease
Deed. The same is also not found in the registered Sale
agreement. The same is also not found in Ex.D.3. This
goes to show that how intelligently defendant No.1 planned
to grab the suit property. Merely because, P.W.1 has
admitted about Exs.D.1 to D.3, defendant No.1 is under an
obligation to prove the passing of sale consideration. At the
cost of repetition, it has to be stated that the plaintiffs have
received a sum of Rs.4,50,000/ from defendant No.1 under
the guise of registered Lease Deed. The same is repaid by
the plaintiffs in favour of defendant No.1. The same is
admitted by D.W.1 in his crossexamination. D.W.1 in his
crossexamination has also stated that he has not paid the
sale consideration on the date of registered sale agreement.
Therefore, in view of the findings on GPA, Sale Agreement
and the Sale Deed while discussing other issues, the Court
69
is of the opinion that they are not instruments in the eye of
law. They are the outcome of fraud played by defendant
No.1. Therefore, the Court has to ignore the registered Sale
agreement, unregistered GPA and registered Sale Deed.
Therefore, the status of plaintiff No.1 is that he is the
landlord and defendant No.1 is only a tenant. Because,
defendant No.1 has not surrendered possession. He
continued to be in possession of suit 'B' schedule property
and the registered Lease Deed is not cancelled. Immediately
after completion of five years term as per the Lease Deed,
the plaintiff has issued a legal notice to defendant No.1 and
the subtenant as per Ex.P.2. The same is served on
defendant Nos.1 and 2 as per Ex.P.3 and Ex.P.4 and Ex.P.5.
The RPAD covers are also produced at Ex.P.6. Defendant
No.1 has not replied to this legal notice. Service of notice
issued by plaintiffs is admitted by D.W.1 in his cross
70
examination. This goes to show that at the initial stage
itself, defendant No.1 not wanted to disclose about the
Deeds. He wanted to kill three years period to save
limitation. By issuing notice, the plaintiffs have terminated
the lease in favour of defendant No.1. The plaintiffs are
seeking arrears of rent of Rs.2,30,000/. The defendant is
also liable to pay the same. The plaintiffs are seeking
damages at the rate of Rs.22,000/ from the date of suit till
realisation of the entire amount and till handing over
possession of 'B' schedule property. Defendant No.1 is
liable to pay the same also. Because he was collecting a
sum of Rs.22,000/ p.m. from the subtenant. In the result,
the plaintiffs are entitled for possession of suit schedule
property. It is argued that due to misjoinder of plaintiff
Nos.2 and 3, the suit has to be dismissed. Plaintiff No.2 is
the wife of plaintiff No.1. Plaintiff No.3 is the son of
71
plaintiff No.1. All the three of them have executed
registered Lease Deed. Therefore, the suit cannot be
dismissed on the ground of misjoinder of parties. In the
result, issue Nos.1 to 5 are answered in the affirmative.
37. Issue No.6 in O.S.No.1012/2008: In view of
findings on other issues, the jural relationship between
plaintiffs and defendant No.1 is proved. Accordingly, they
are entitled for possession. Accordingly, issue No.6 is
answered in the affirmative.
38. Issue No.7 in O.S.No.1012/2008 & Issue No.11
in O.S.No.9963/2015: In view of findings on issue Nos. 1
to 6 in O.S.No.1012/2008 and issue Nos.1 to 10 in
O.S.No.9963/2015, I proceed to pass the following:
72
ORDER
O.S.No.1012/2008 filed by the plaintiffs against defendant Nos.1 and 2 is decreed with cost.
Defendant No.1 is directed to quit and hand over vacant possession of 'B' schedule property in favour of the plaintiffs within one month from this day.
Defendant No.1 is directed to pay a sum of Rs.2,30,000/ (Rupees Two Lakhs Thirty Thousand) to the plaintiffs towards arrears of rent.
Defendant No.1 is directed to pay damages at the rate of Rs.22,000/ p.m. (Rupees 73 Twenty Two Thousand) from the date of suit i.e., from 1322008 till handing over vacant possession of the suit schedule property. O.S.No.9963/2015 filed by the plaintiffs against defendant Nos.1 and 2 is partly decreed with cost.
it is declared that plaintiff No.1 is the absolute owner of plaint 'B' schedule property. It is declared that the registered agreement to sell dated 17122001, the registered Sale Deed dated 18102007and the unregistered GPA dated 18122001 are void and not binding on the plaintiffs and accordingly, they are cancelled.
74
The relief of Permanent Injunction claimed in O.S.No.9963/2015 is dismissed. Keep the original Judgment in O.S.No.1012/2008 and copy of the same in O.S.No.9963/2015.
Draw Decree.
(Dictated to the J.Wr., transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 26th day of February 2021.) (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru 75 ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : M.Manjunath Kumar Witnesses examined on behalf of the defendants.
D.W.1 : Sri.Inder Bohra Documents marked on behalf of the plaintiff.
Ex.P.1 : Certified copy of the Lease Deed Ex.P.2 : Office copy of the legal notice Exs.P.3 : Postal acknowledgments to P.5 Ex.P.6 : Returned RPAD cover Ex.P.5 : No objection certificate Ex.P.6 : RTC Ex.P.7 : Certified copy of Agreement of Sale dated 17122001 Exs.P.8 : Certified copy of Agreement of Sale dated 17122001 76 Ex.P.9 : Certified copy of the Sale Deed dated 18102007 Exs.P.10 : Visible copies of Ex.P.1, 7 to 9 to P.13 Exs.P.14 : Certified copies of Form No.1. & P.15 Exs.P.16 : Affidavit of the vendor & P.17 Ex.P.18 : Certified copy of the Encumbrance Certificate from 01042006 to 21012013 Ex.P.19 : General Power of Attorney Ex.P.20 : Certified Copy of the Order sheet in O.S.No.1549/2002 Ex.P.21 : Certified copy of the plaint in O.S.No.1549/2002 Ex.P.22 : Certified copy of the Order in CRP No.523/2017 Ex.P.23 : Photographs Ex.P.24 : Certified copy of the Order sheet in O.S.No.25763/2019 77 Documents marked on behalf of the defendants.
Ex.D.1 : Original of Ex.P.12
(Agreement of Sale)
Ex.D.2 : Original Lease Deed
dated 18122001
Ex.D.3 : GPA
Ex.D.3(a) : Signatures on Ex.P.3 Ex.D.4 : Certified copy of the order sheet in Ex.No.2077/2013 Ex.D.5 : EP petition Ex.D.6 : Copy of the legal notice Ex.D.7 : Certified copy of the order passed on I.A.No.4 in O.S.No.306/2008 Ex.D.8 : Certified copy of the order sheet in O.S.No.306/2008 Exs.D.9 : Tax paid receipts to D.21.
Ex.D.22 : Khata Certificate 78 Ex.D.23 : Khata Extract Ex.D.24 : Assessment Order Ex.D.25 : Original of Ex.P.13 Ex.D.26 : Receipt dated 19122001 Ex.D.27 : Encumbrance Certificate Ex.D.28 : Sketch Ex.D.29 : Certified copy of the Order sheet in O.S.No.306/2008 Ex.D.30 : Plaint in O.S.No.306/2008 Ex.D.31 : Written statement in O.S.No.306/2008 Ex.D.32 : Issue in O.S.No.306/2008 Ex.D.33 : Certified copy of I.A.No.3 in O.S.No.306/2008 ExD.34 : Certified copy of objection in O.S.No.306/2008 Ex.D.35 : Certified copy of orders on I.A.No.3 in O.S.No.306/2008 79 Ex.D.36 : Certified copy of I.A.No.1 in O.S.No.306/2008 Ex.D.37 : Certified copy of objection in O.S.No.306/2008 Ex.D.38 : Certified copy of I.A.No.2 in O.S.No.306/2008 Ex.D.39 : Certified copy of objection in O.S.No.306/2008 Ex.D.40 : Certified copy of orders on I.A.No.2 in O.S.No.306/2008 Ex.D.41 : Certified copy of examination in chief of P.W1 Ex.D.42 : Certified copy of the legal notice Ex.D.43 : Certified copy reply notice Exs.D.44 : Certified copy of postal & D.45 acknowledgments Ex.D.46 : Certified copy of unserved RPAD covers Ex.D.47 : Certified copy of I.A.No.4 Ex.D.48 : Certified coy of I.A 80 Ex.D.49 : Certified copy of Judgment Ex.D.50 : Certified copy of Decree Ex.D.51 : Certified copy of the memorandum Ex.D.52 : Certified copy of Vakalath Ex.D.53 : Certified copy of RFA Ex.D.54 : Certified copy of the Judgment Ex.D.55 : Certified copy of the Decree passed in RFA Ex.D.56 : Certified copy of the order sheet (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru