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[Cites 17, Cited by 0]

Bangalore District Court

In Os Smt.Nagarathnamma vs In Os 1. Gopal on 19 March, 2022

IN THE COURT OF THE IV ADDL. CITY CIVIL & SESSIONS
         JUDGE AT MAYO HALL BENGALURU
                     (CCH-21)
                          Present:
            Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
  XXVI Addl. City Civil & Sessions Judge & C/c IV ACC & SJ.,
                           Bengaluru

         Dated this the 19 th day of March, 2022

            O.S.Nos.25133/2007, 25134/2007
                  & OS No.25137/2007

 Plaintiffs in OS         Smt.Nagarathnamma
 No. 25133/2007:-         Since dead by Legal heirs:-
                     1(a) N.Dasappa,
                          Son of Late Nagappa,
                          Aged about 89 years,
                          Residing at No.5, 3rd Cross,
                          Cubbonpet, Bengaluru -02
                     1(b) Chandra.R,
                          D/o     N.Dasappa      @       Late
                          Nagarathnamma,                 W/o
                          Ramachandra.G., Aged about 63
                          years, Residing at No.1, 4th Cross,
                          Shivanna                   Layout,
                          Halagevaderahalli, Rajarajeshwari
                          Nagar, Bengaluru
                     1(c) D.Mukund,Son of Late
                          Nagappa,Aged about 60
                          years,Residing at No.5, 3rd Cross,
                          Cubbonpet, Bengaluru -02
                              2
                                                 OS No.25133, 25134
                                                      & 25137/2007



                   1(d) D.Gangadhar,
                        Son of Late Nagappa,
                        Aged about 58 years,
                        Residing at No.5, 3rd Cross,
                        Cubbonpet, Bengaluru -02
                   1(e) D.Venkatesh,
                        Son of N.Dasappa,
                        Aged about 54 years,
                        Residing at No.90/35, 1st Main,
                        4th Cross, Vittala Nagar,
                        Bengaluru 560 026.
                   1(f)   D.Nagaraj,
                          Son of N.Dasappa,
                          Aged about 52 years,
                          Residing at No.62, Near Jolly
                          Club, Bheema Rao Layout,
                          Anekal Town, Bengaluru

                          [By Sri.JS-Adv.]


Plaintiffs in OS          Smt.Nagarathnamma
No. 25134/2007:-          Since dead by Legal heirs:-
                   1(a) N.Dasappa,
                        Son of Late Nagappa,
                        Aged about 89 years,
                        Residing at No.5, 3rd Cross,
                        Cubbonpet, Bengaluru -02
                   1(b) Chandra.R,
                        D/o   N.Dasappa          @         Late
           3
                              OS No.25133, 25134
                                   & 25137/2007



       Nagarathnamma,             W/o
       Ramachandra.G., Aged about 63
       years, Residing at No.1, 4th
       Cross,     Shivanna     Layout,
       Halagevaderahalli,
       Rajarajeshwari Nagar, Bengaluru
       560 098.
1(c)   D.Mukund,
       Son of Late Nagappa,
       Aged about 60 years,
       Residing at No.5, 3rd Cross,
       Cubbonpet, Bengaluru -02
1(d) D.Gangadhar,
     Son of Late Nagappa,
     Aged about 58 years,
     Residing at No.5, 3rd Cross,
     Cubbonpet, Bengaluru -02
1(e) D.Venkatesh,
     Son of N.Dasappa,
     Aged about 54 years,
     Residing at No.90/35, 1st Main,
     4th Cross, Vittala Nagar,
     Bengaluru 560 026.
1(f)   D.Nagaraj,
       Son of N.Dasappa,
       Aged about 52 years,
       Residing at No.62, Near Jolly
       Club, Bheema Rao Layout,
       Anekal Town, Bengaluru
                                  4
                                                  OS No.25133, 25134
                                                       & 25137/2007



                           [By Sri.JS-Adv.]
Plaintiff in               N.Dasappa
OS No.                     Son of V.Nagappa,
25137/2007:-               Aged about 72 years,
                           Old No.5, New No.11, 3rd Cross,
                           Cubbon Pet,
                           Bengaluru 560 002

                           [By Sri.JS-Adv. ]

                           Vs.

Defendants in OS 1.        Gopal,
No. 25133/2007,            Son of Krishnappa,
25134/2007 &               Aged about 52 years,
25137/2007:-     2.        Muniraju,
                           Son of Krishnappa,
                           Aged about 36 years,
                      3.   Manjunath,
                           Son of Krishnappa,
                           Aged about 29 years,
                           All are Residing at Kudlu
                           Village, Singasandra Post,
                           Bengaluru 560 068
                           [By Sri.MSS-Adv]


Date of Institution    OS No.25133/2007        17.01.2007
of suit:               OS No.25134/2007        17.01.2007
                       OS No.25137/2007        17.01.2007
                              5
                                                    OS No.25133, 25134
                                                         & 25137/2007


Nature of the Suit
(Suit for Pronote,
Suit for Declaration             Injunction Suits
and Possession,
Suit for Injunction,
etc.):
Date of                OS No.25133/2007        14.07.2008
Commencement of
                       OS No.25134/2007        14.07.2008
recording of
                       OS No.25137/2007        14.07.2008
evidence:
Date on which the
Judgment was                       19.03.2022
pronounced:
Total Duration:
                             Years      Months        Days

OS No.25133/2007                 15       02            02
OS No.25134/2007                 15       02            02
OS No.25137/2007                 15       02            02




                             (D.S.VIJAYA KUMAR)
                         XXVI Addl. City Civil Judge
                        & C/c IV ACC & SJ.,Mayo Hall,
                                Bengaluru.
                              6
                                                  OS No.25133, 25134
                                                       & 25137/2007




                 COMMON JUDGMENT


     Plaintiffs in OS No.25133/2007 and OS No. 25134/

2007 and Plaintiff   is OS No.25137/2007, have sought

decree   of   Permanent    Injunctions   to   restrain        the

defendants from interfering with the peaceful possession

and enjoyment of the suit schedule property and also to

restrain the defendants from creating any fraudulent

conveyance deed by suppressing the sale effected in

favour of the plaintiff   in respect of the suit schedule

property and also for mandatory injunction directing the

defendants to hand over the vacant possession            of the

property by dismantling and removing the compound wall

put up therein by the defendants and for costs.

     The Defendants are common in both the suits. For

the sake of convenience common judgment is being
                              7
                                                 OS No.25133, 25134
                                                      & 25137/2007


passed in OS Nos.25133/2007, 25134/2007 and 25137/

2007.

        2. Brief facts of the case of the Plaintiff in OS

No.25133/2007, 25134/2007 and OS No.25137/2007 in

common are as below:-


        Property bearing Survey Number-42 situated at

Aralukunte village, Begur Hobli, Bengaluru South Taluk

measuring      1 Acre 16 guntas originally belonged to

Krishnappa S/o Venkatappa who acquired the same by

virtue of partition effected between himself and his

brother, who in turn formed a Layout in the said land

during the year 1988, Out of the layout, site no.24 which is

the suit schedule property in OS No. 25133/2007 was sold

to the plaintiff under a Sale Deed dtd. 15.12.1997 and Site

No.15 which is the suit schedule property in OS
                               8
                                                   OS No.25133, 25134
                                                        & 25137/2007


No.25134/2007 was sold to plaintiff under a sale

agreement dtd.24.10.1996 and subsequently under Sale

Deed dtd.15.12.1997 and site Nos.7 and 13 which are the

suit schedule properties in OS No.25137/2007 were sold to

one    Smt.Nagarathamma       W/o   Dasappa     under         Sale

Agreement dtd. 14.12.1988 subsequently purchased under

a Sale Deed dtd. 21.03.1994. During September 1996

original owners from the side of the second wife's family

put forth a claim and accordingly an agreement was

entered into on 9.9.1996 in settling all the claims of them

with regard to the plaintiffs and other purchasers. On

26.07.2004 katha has been effected in the name of

respective plaintiffs by Bommanahalli Nagara Sabha.

Plaintiffs have also paid taxes to the concerned authorities.

Plaintiffs   have   paid   betterment   charges.    That       the

defendants are the children of Krishnappa, who sold the
                                  9
                                                        OS No.25133, 25134
                                                             & 25137/2007


suit property in favour of plaintiffs. In the layout formed

by Krishnappa they have also retained some portions of

the property towards the share of first wife as well as her

son and second wife as well as her children and in all 17

sites were sold to different purchasers i.e. site Nos.28 to 34

retained for the first wife's family including the first

defendant. Right from the date of purchase, the plaintiffs

are in possession and enjoyment of their respective suit

schedule properties. Though the defendants have no

manner of right, title, interest and possession over any

portion of the suit schedule properties, they started

threatening   the   plaintiffs       by   interfering   with      their

possession over the suit schedule property on 3.1.2007.

Further, in the suits this court was pleased to issue an ad-

interim order of status quo which came to be confirmed by

the High Court of Karnataka, Bengaluru. But, the
                              10
                                                 OS No.25133, 25134
                                                      & 25137/2007


defendants taking advantage of the pendency of the suit

ventured to dump waste material in the layout and a

complaint in that regard has been lodged before HSR

Layout Police Station on 5.1.2009 and also to the local

authorities who intervened and removed the blockage and

also got tarred 20 feet width road. On 09.3.2011 plaintiffs

reliably came to know that the defendants started

construction activities in site nos. 20 to 22 apart from

putting up compound wall in site nos. 17 to 21 and 23 to

28 and also put up temporary zinc sheet sheds in sits nos.

5 to 16 apart from dumping scarp materials on the sites by

blocking the entrance of 25 feet road apart from utilizing

some portions as cow shed. Since the defendants violated

the court order, plaintiff was inclined to initiate contempt

proceedings before the High Court of Karnataka, Bengaluru

in which an observation was made to the plaintiffs to
                              11
                                                 OS No.25133, 25134
                                                      & 25137/2007


approach the trial court in the pending suit. Hence, a court

commissioner was appointed who submitted a report in

the suit. On these grounds, the plaintiffs have sought the

reliefs against the defendants.


     3. The Defendants 1 to 3 who are common in both

the suits have filed written-statement and addl. Written

statement and contested the suit.


     4. Brief facts of the written-statement and Addl.

Written statement     of defendants in common are as

under:-


     Defendants admit the land in question belonged to

Krishnappa, however, they denied that there was layout

formed and sites were sold and suit schedule properties

are in existence. It is also stated that Krishnappa and his

children have no independent right to enter into any
                             12
                                                OS No.25133, 25134
                                                     & 25137/2007


Agreement of Sale or to execute the Power of Attorney in

the name of plaintiff or in the name of any other persons

in respect of land       bearing Survey Number-42 of

Aralakunte village. It is stated that as on the date of the

Sale Deed there was no house constructed and even today

no house is in existence. All the revenue records stand in

the name of one Chinnappa @ Yallappa. When the suit

schedule property is not in existence, sale deeds relied

upon by the plaintiffs to prove the possession of the same

will not help them in any manner. There was a litigation

pending between the first defendant, their father in OS

No.8415/1996 in the court of City Civil Court, Bengaluru

and same was concluded by way of compromise on

27.11.2006. Thereafter their father died on 07.12.2006 and

in the said compromise they have filed a sketch showing

how they have partitioned the land bearing Survey
                              13
                                                 OS No.25133, 25134
                                                      & 25137/2007


Number-42 and other properties and they have been in

possession and enjoyment of the same. Plaintiffs are not in

possession of the said lands or any portion of land bearing

Survey Number-42. The alleged receipts obtained from the

Panchayath are all created documents for the purpose of

the case. As per the revenue records it has been continued

as agricultural land and the same is not converted till

today. The alleged Power of Attorney given to the plaintiffs

and other parties in the connected suits have been

cancelled by the first defendant         and their father

Krishnappa and they have no authority to deal with the

same in any manner. The suits are not maintainable for the

simple reason that as on the date of filing the suits,

plaintiffs are not in possession of the suit schedule

property. Hence the suit is liable to be dismissed. That the

plaintiffs have not sought for any declaratory reliefs as
                                14
                                                  OS No.25133, 25134
                                                       & 25137/2007


regards their title over the suit schedule properties. In the

absence of any prayer to recover possession of the suit

property, mere prayers for mandatory or permanent

injunction will not survive and the same cannot be granted.

On these grounds, defendants have prayed for dismissing

the suit of the plaintiffs with costs.


      5. In support of the plaintiff's case, in these suits,

plaintiff in OS No.25137/2007 got examined himself as

PW.1 and also General Power of Attorney Holder of the

plaintiffs in all the suits as PW.2 and got marked 55

documents as Exs.P.1 to Ex.P.55. On behalf of the

defendants, defendant No.1 got examined as DW.1 and

got marked 52 documents as Ex.D.1 to D.52. Court

commissioner has been examined as CW.1 and Ex.C.1 to

C.12 got marked.
                               15
                                                OS No.25133, 25134
                                                     & 25137/2007


     6. Heard arguments.



     Learned counsel for the plaintiffs has relied upon the

following decisions:-

     1) AIR 1969 Supreme court 73
     2) 2012 SCC Online Delhi 2937
     3) (2008) 4 SCC 594
     4) (2019) 17 SCC 692
     5) 2021 SCC Online SC 675
     6) (1995) 6 SCC 50
     7) (1997) 3 SCC 443
     8) (1994) 2 SCC 266
     9) (1996) 4 SCC 622
     10)1975 SCC Online Mad. 73
     11) 1985 SCC Online Cal. 146
     12) 2016 SCC Online Hyd. 490
     13) 2012 (3) SCALE 550
     Learned counsel for the defendants has relied upon

the following decisions:-
                              16
                                                OS No.25133, 25134
                                                     & 25137/2007


     1) ILR 2014 Karnataka 4716
     2) ILR 2016 Karnataka 2670
     3) AIR 2008 Supreme Court 2033
     4) AIR 2018 (SUPP) SC 1159
     5) CA. 6989-6992/2001
     6) AIR 2021 SC 4923
     7) 2021(2) Karnataka L.R. 477 (SC)
     8) AIR 1992 Bombay 149.


     7. Following Issues and Addl Issues have been

framed in OS No.25133/2007:-


                             Issues

          1) Whether plaintiff proves he is in
       lawful possession over the suit property?
          2)Whether plaintiff proves interference
       by the defendants?
          3) Whether Plaintiff     is entitled for
       permanent injunction?
          4) What decree or order?
                             17
                                                    OS No.25133, 25134
                                                         & 25137/2007


                Addl. Issues dtd. 15.07.2019

          1) Whether the plaintiff        proves that
       during     the   pendency     of     the   suit
       defendants have illegally put up Zinc
       Sheet Shed and stored scrap material in
       the suit property?
          2) Whether the defendants prove that
       the suit is barred by limitation?
          3) Whether the defendants prove that
       the court fee paid is insufficient?
          4) Whether the plaintiff is entitled for
       mandatory injunction as prayed for?


     8. Following Issues and Addl.issues           have been

framed in OS No.25134/2007:-

                            Issues

          1) Whether plaintiff proves he is in
       lawful possession over the suit property?
                              18
                                                    OS No.25133, 25134
                                                         & 25137/2007


          2)Whether plaintiff proves interference
        by the defendants?
          3) Whether Plaintiff is entitled for
        permanent injunction?
          4) What decree or order?

                 Addl. Issues dtd. 15.07.2019

          1) Whether the plaintiff proves that
        during     the   pendency    of     the   suit
        defendants have illegally put up Zinc
        Sheet Shed and stored scrap material in
        the suit property?
          2) Whether the defendants prove that
        the suit is barred by limitation?
          3) Whether the defendants prove that
        the court fee paid is insufficient?
          4) Whether the plaintiff is entitled for
        mandatory injunction as prayed for?


      9. Following Issues and Addl.issues          have been

framed in OS No.25137/2007:-
                      19
                                            OS No.25133, 25134
                                                 & 25137/2007


                  Issues

  1) Whether plaintiff proves he is in
lawful possession over the suit property?
  2)Whether plaintiff proves interference
by the defendants?
  3) Whether Plaintiff is entitled for
permanent injunction?
  4) What decree or order?

         Addl. Issues dtd. 15.07.2019

  1) Whether the plaintiff proves that
during     the   pendency    of     the   suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
  2) Whether the defendants prove that
the suit is barred by limitation?
  3) Whether the defendants prove that
the court fee paid is insufficient?
  4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
                               20
                                                    OS No.25133, 25134
                                                         & 25137/2007


       10. For the reasons stated in the subsequent

paragraphs, I answer above Issues as follows:-


     ISSUE No.1 in OS
     Nos.25133/2007      :- In the negative
     25134/2007

     Issue No. 1 in
     OS No.25137/2007 :-      In the affirmative

     ISSUE No.2 in OS
     Nos.25133/2007      :-   In the negative
     25134/2007

     Issue No.2 in
     OS No. 25137/2007 :-     In the affirmative

     ISSUE No.3 in OS
     Nos.25133/2007
     & 25134/2007        :- In the negative

     ISSUE No.3 in
     O.S.No.25137/2007 :-      In the affirmative

     Addl. Issue No.1
     in OS Nos.
     25133/2007
     & 25134/2007
     and 25137/2007           :-   In the affirmative
                           21
                                                 OS No.25133, 25134
                                                      & 25137/2007


Addl. Issue No.2
in OS Nos.
25133/2007
& 25134/2007
and 25137/2007       :-        In the negative

Addl. Issue No.3
in OS Nos.
25133/2007
& 25134/2007
and 25137/2007       :-        In the negative

Addl. Issue No.4
in OS Nos.
25133/2007           :- In the negative
& 25134/2007

Addl. Issue No.4
in OS No. 25137/2007 :-        In the affirmative

Issue No.4 in
in OS Nos. 25133/2007:- As pr final order
& 25134/2007            for the following:-

Issue No.4 in
OS No.25137/2007          :-    As per final order for
                                the following:-



                   REASONS
                              22
                                                       OS No.25133, 25134
                                                            & 25137/2007


      11. Issue No.1 and Addl.Issue No.1 in OS No.

25133/2007,     25134/2007        and     25137/2007:-            Suit

schedule properties in these suits are Site No.24 in OS

No.25133/2007, Site No.15 in OS No.25134/2007 and Site

Nos.7 and 13 in OS No.25137/2007. OS No.25133/2007

and   OS   No.25134/2007     have       been   filed     by      Smt.

Nagarathnamma since dead, she is represented by her

Legal heirs and OS No.25137/2007 has been filed by

Dasappa. Above said deceased Nagarathanamma is the

wife of N.Dasappa(Plaintiff in OS No.25137/2007). The suit

schedule sites are said to be carved out in the land bearing

Survey Number- 42 situated at Arulukunte village, Begur

Hobli, Bengaluru South Taluk admeasuring               1 Acre 16

guntas. Formation of the said sites in the said land is not

admitted by the Defendants. However, it is an admitted

fact that the land bearing Survey Number- 42 measuring 1
                                23
                                                 OS No.25133, 25134
                                                      & 25137/2007


Acre 16 guntas belonged to the father of the defendants 1

to 3 namely Krishnappa and he had acquired the same

under a Partition Deed between himself and his brothers.

Krishnappa's brother is said to have had purchased larger

extent in Survey Number- 42 on behalf of the joint family

and in the partition above said extent of 1 Acre 16 guntas is

said to have fallen to the share of defendants' father

Krishnappa. This is actually not in dispute. Plaintiffs claim

is that the site Nos.15 and 24 mentioned above was

purchased    by    plaintiff   Nagarathanmma    for   a     sale

consideration     of Rs.60,000/- under a Regd. Sale Deed

dtd. 15.12.1997 through General Power of Attorney

Holder of Krishnappa and his family members; Site No.15

and 24 (In General Power of Attorney       in one place the

number is wrongly mentioned as Site No.15 and 16 but in

schedule it is shown as Site No.15 and 24) were acquired
                              24
                                                 OS No.25133, 25134
                                                      & 25137/2007


by Plaintiff   for sale consideration   of Rs.60,000/- from

Krishnappa and his family members through their General

Power of Attorney Holder Dasappa i.e., her husband

under Sale Deed dtd. 15.12.1997; and site Nos.7 and 13

were acquired by the plaintiff Dasappa under Sale Deed

dtd. 21.03.1994 for Rs.20,000/- from Krishnappa and his

family members through their GPA and Sale Agreement

holder Smt. Nagarathanamma i.e., wife of Plaintiff -

Dasappa.




     12. All these three suits have been clubbed and

common evidence has been recorded. On behalf of the

plaintiffs, Dasappa has been examined as PW.1 and his son

D.Gangadhar has been examined as PW.2. Plaintiffs have

got marked Ex.P.1 to 55 on their behalf. Details of the Sale
                                       25
                                                                 OS No.25133, 25134
                                                                      & 25137/2007


Deed documents and revenue documents marked in

respect of suits are as below:-




    Sale Transaction pertaining to Site No.24 in OS No.25133/2007

   Date        Executed by          In favour of       Nate of         Exhibit
                                                      document
24.10.1996 Krishnappa        and     Dasappa       Sale Agreement       Ex.P.1
           family
24.10.1996 Krishnappa        and     Dasappa             GPA            Ex.P.2
           family
15.12.1997 Krisnappa & Family      Nagarathnamma     Sale Deed          Ex.P.3
           through GPA Holder
           Dasappa
09.09.1996 Krishnappa      &        Dasappa        Agreement            Ex.P.4
           Family (Except                          (Settlement
           All site owners &                       Agreement)
           defendant No.1)
24.10.1996 Krishnappa      &        Dasappa        Affidavit            Ex.P.5
           Family     (Except
           defendant No.1)


   Revenue and other allied documents relied on by the plaintiffs
          pertaining to Site No.24 in OS No.25133/2007


                      Particulars of document                          Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.6-7
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.11-
under the Self Assessment Scheme along with the Tax paid receipts for 20
                                       26
                                                                   OS No.25133, 25134
                                                                        & 25137/2007


the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004                       Ex.P.21



   Sale Transaction pertaining to Site No.15 in OS No.25134/2007

   Date        Executed by           In favour of       Nate of          Exhibit
                                                       document
24.10.1996 Krishnappa        and      Dasappa            Sale             Ex.P.1
           family                                     Agreement
24.10.1996 Krishnappa        and      Dasappa             GPA             Ex.P.2
           family
15.12.1997 Krisnappa & Family      Nagarathnamma       Sale Deed         Ex.P.23
           through GPA Holder
           Dasappa
09.09.1996 Krishnappa      &         Dasappa         Agreement            Ex.P.4
           Family (Except All                        (Settlement
           site owners and                           Agreement)
           defendant No.1)
24.10.1996 Krishnappa      &        Dasappa          Affidavit            Ex.P.5
           Family     (Except
           defendant No.1)


   Revenue and other allied documents relied on by the plaintiffs
          pertaining to Site No.15 in OS No.25134/2007


                       Particulars of document                           Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.24
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.25-
under the Self Assessment Scheme along with the Tax paid receipts for 34
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 06.01.2007                       Ex.P.35-
                                                                         36


Sale Transaction pertaining to Site No.7 and 13 in OS No.25137/2007
                                        27
                                                                     OS No.25133, 25134
                                                                          & 25137/2007




   Date         Executed by           In favour of         Nate of         Exhibit
                                                          document
14.12.1988 Krishnappa         and   Nagarathnamma           GPA            Ex.P.37
           family
14.12.1988 Krishnappa         and   Nagarathanamma      Unregistered       Ex.P.38
           family                                        Sale Deed
21.03.1994 Krisnappa & Family        Dasappa             Sale Deed         Ex.P.39
           through GPA Holder
           Nagarthnamma
24.10.1996 Krishnappa      &         Dasappa                Affidavit      Ex.P.40
           Family     (Except
           defendant No.1)



   Revenue and other allied documents relied on by the plaintiffs
        pertaining to site No.7 and 13 in OS No.25137/2007


                       Particulars of document                             Exhibit
Assessment Form-3 issued by the Bommanahalli                               Ex.P.41
Nagarasabha, Bengaluru
Application submitted by the plaintiff for the payment of the              Ex.P.42-
taxes under the Self Assessment Scheme along with the Tax                  51
 paid receipts for the years 2002-03, 2003-04, 2004-05, 2005-06,
2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 06.01.2007                         Ex.P.52 &
                                                                           53




       13. Defendants claim that their father Krishnappa

and themselves have not executed any Sale Agreement

and General Power of Attorneys and in the same breath
                              28
                                                  OS No.25133, 25134
                                                       & 25137/2007


they claim that the Power of Attorney given to the plaintiffs

and others parties mentioned above have been canceled

by the defendant No.1 and his father Krishnappa and

hence they had no authority to deal with the same in any

manner. They have also contended that Krishnappa and his

children have no independent right to enter into any

Agreement or to execute General Power of Attorney and

there was no layout formed in the land bearing Survey

Number-42 as claimed by the plaintiffs and therefore the

suit schedule sites are not in existence and sale deeds

registered in the name of the plaintiffs are in respect of

non existing property and as on the date of the Regd. Sale

Deed and also on the date of filing the written statement

there were no houses in existence in the suit property.

Plaintiffs in the above suits might have misused the

signatures of late Krishnappa and Defendants 2 and 3. The
                               29
                                                    OS No.25133, 25134
                                                         & 25137/2007


Affidavit claimed by the plaintiffs have not been sworn to

by them. Plaintiffs were not in possession         of the suit

property as on the date of the suit and there was a suit

between the defendant No.1 and his father Krishnappa in

OS No.8415/1996 in the Court of Addl. City Civil Court,

Bengaluru and the same was compromised on 07.12.2006

and they have partitioned the said land and other lands as

per the Sketch annexed to the compromise petition filed in

the said suit. Defendants claim that even to this day the

suit property is agricultural land and plaintiffs have filed a

false suit without possession of the suit land.



     14. It is the case of the plaintiffs that after instituting

the suits, defendants have put up the construction in the

suit property     and therefore the plaintiffs who had

originally filed the suit for permanent injunction have got
                                30
                                                    OS No.25133, 25134
                                                         & 25137/2007


amended the plaint and sought the relief of mandatory

injunction      for removal of the construction and for

possession by contending that even though interim order

of injunction     was in force and later same had been

modified into an order of status quo by the High Court of

Karnataka, Bengaluru, in violation of the same, the

Defendants have put up said constructions during the

pendency of the suit. Defendants have filed additional

written statement       denying the constructions of any

building after institution of the suit.


      15. On behalf of the defendants defendant No.1 has

got himself examined as DW.1 and got marked Ex.D.1 to

D.52 documents. Details of the said documents are as

below:-

    Ex.D.1-2         Certified copy   of   the   Encumbrance
                     Certificates
                         31
                                                  OS No.25133, 25134
                                                       & 25137/2007


Ex.D.3-5     Certified copy of the RTC

Ex.D.6       Certified copy of the compromise petition
             in OS No.8415/1996

Ex.D.7       Certified copy of the final decree in OS
             No.8415/1996
Ex.D.8       Certified copy of the Layout plan

Ex.D.9       Encumbrance Certificate

Ex.D10       Mutation Register Extract

Ex.D.11-12   RTC

Ex.D.13-14   Certified copy of the Tax receipts

Ex.D.15-16   Encumbrance Certificates

Ex.D.17      Certified copy of the tax receipts

Ex.D.18      Certified copy of the Affidavit

Ex.D.19      Copy of the notice issued to the plaintiff

Ex.D.20      Copy of the notice issued to K.Ramaiah

Ex.D.21-22   Postal receipts

Ex.D.23      Certificate of Posting

Ex.D.24-25   Postal acknowledgment

Ex.D.26      Copy of the caveat petition

Ex.D.27      Certified copy of the Order sheet in RFA
                        32
                                                  OS No.25133, 25134
                                                       & 25137/2007


             No.1022/2007

Ex.D.28      Death Certificate of Krishna Reddy

Ex.D.29-30   Revocation of Power of Attorney

Ex.D.31      Certified copy of the Final Decree in OS
             No.8415/1996.

Ex.D.32      Copy of Form 'B' Property Register

Ex.D.33      Copies of Tax paid receipts

Ex.D.34-35   Copy of the Final decree               in    OS
             No.8415/1996 dtd. 14.02.2007

Ex.D.36      Copies of the Record of Rights in respect
             of Survey Number-42/1
Ex.D.37      Copy of Katha Certificate. Dtd. 27.12.2013

Ex.D.38      Copy of Form 'B' Register

Ex.D.39      Copy of Katha Registration notice dtd.
             18.12.2013

Ex.D.40      Copies of Tax paid receipts

Ex.D.41      Copy of the       Final     decree     in    OS
             NO.8415/1996

Ex.D.42      Copies of 5 RTC

Ex.D.43      Copy of the Encumbrance Certificate

Ex.D.44-46   Certified copy of Form 'A' under RTI Act
             with IPO counter files
                              33
                                                     OS No.25133, 25134
                                                          & 25137/2007


   Ex.D.47-49      Endorsements issued by BBMP

   Ex.D.50         Certified copy of the written statement in
                   OS No.8415/1996

   Ex.D.51         Certified copy of the deposition of RW.1 in
                   OS No.8415/1996

   Ex.D.52         Certified copy of the deposition of PW. 1In
                   OS No.8415/1996




     Since it is an admitted fact that earlier the suit land

bearing Survey Number- 42 belonged to the defendants

father Krishnappa and he had acquired the same under a

Partition Deed between himself and his brothers, above

said documents produced by the defendants are not of

much consequence. The R.T.Cs. have been produced by the

defendants to show that the suit property had been

entered in their name and the same is as per the Decree

granted in the Partition suit in OS No.8415/1996. They have

also produced certified copy of the Decree in the said suit.
                                      34
                                                                 OS No.25133, 25134
                                                                      & 25137/2007


Further, they have produced certified copy of an affidavit

which is said to have been sworn to by Krishnappa as per

Ex.D.18 and copies of the legal notices as per Ex.D.19 and

20, revocation deeds of General Power of Attorney as per

Ex.D.29 and 30, copy of the caveat petition, final decree

and pleading in OS No.8415/1996 as per Ex.D.7. They have

produced layout plan in respect of land bearing Survey

Number- 42/P5 as per Ex.D8. Ex.D19 and 20 are the copies

of the legal notices dtd. 23.03.1995 issued by defendant

No.1 to the plaintiff Nagarathnamma and another

K.Ramaiah. Under the said notices, defendants claim that

they have canceled the General Power of Attorney that

had been given. The notice at Ex.P.19 read as below:-

         "Under instructions from my client Sri K. Gopala, son
    of Krishnappa, residing at No.5, I Cross, Srishaila Nilaya,
    Venkataramaiah    Layout,   Ramamurthynagar,          Main      Road,
    Doddabanaswadi, Bangalore 43, I cause this notice to you as follows:-

      1. My client informs me to state that at the instance of
    his father, my client's aunt viz., Papamma and her six children have
                                       35
                                                                  OS No.25133, 25134
                                                                       & 25137/2007


    executed a Power of Attorney on 14/'16-12-1998 touching the site No.
    7 and 13 of Aralakunte village, Begur Hobli, Bangalore South Taluk,
    formed in Survey No.42 measuring East to West 30 feet and North to
    South 40 feet to manage and supervise the same.

      2. My client further states that he was under the terms and dictates
    of his father was forced to sign the said power of of attorney among
    others jointly. He further states that his sisters viz., Bharati, Roopa
    and brother Manjunatha were the minor as on that date, and they
    were not duly represented by natural guardian. My client's brother
    and sisters being minor shall no contractual capacity. hence, they
    can't be termed as executants of the documents stated supra. The so
    called minors including my client were under the terms and dictates
    of their father. The signature of my client and his sister Rukkamma
    and step mother Papamma were obtained by exercising the undue
    influence My client further states that is there is no consensuses ad-
    idem to execute the general power of attorney in your favour to act
    as an agent of my client to carry out the work as stated in the General
    Power of Attorney stated supra, touching the property mentioned
    therein. That as per my client's instructions and as per the grounds
    stated above, I hereby revoke the General Power of Attorney
    executed in your favour on 14/16-12-1988 touching the site Nos. 7
    and 13 formed in Survey No. 42 Aralakunte village, Begur Hobli
    Bangalore South Taluk.

               Therefore, I hereby revoke the General Power of
    Attorney executed in your favour and further call upon
    you not to act on the strength of the Power of Attorney dated 14/16-
    12-1988, touching the aforesaid site No.7 and 13 inspite of this
    notice, if you proceeded further, your actions will not be bind on my
    client in any manner".



     Ex.P.20 notice is issued with the same content to one

K.Ramaiah (not a party to this suit ) in respect of Site

No.24.
                              36
                                                 OS No.25133, 25134
                                                      & 25137/2007


     It is the contention of the plaintiffs counsel that the

above said legal notices issued by defendant No.1 itself

shows that the General Power of Attorney        documents

produced by the plaintiffs had indeed been executed by

Krishnappa and his family members. In fact, the contents

of the above legal notices and also averments in the

written statement show that the same admit the fact that

Krishnappa and his family members had executed Sale

Agreements and General Power of Attorneys in question.

But, the defendant No.1 claims that he was forced to sign

the said Power of Attorney jointly with other family

members. He further contends in the legal notice that his

sisters Bharathi, Roopa and brother Manjunath were

minors as on that date and they were not duly represented

by their natural guardian and therefore, the General Power

of Attorney claimed by the plaintiffs are illegal. Hence the
                              37
                                                 OS No.25133, 25134
                                                      & 25137/2007


above said contention of the defendants in the written

statement and also legal notices at the outset show that

Krishnappa and his family members had executed the Sale

Agreements and General Power of Attorney as claimed by

the plaintiffs. Now burden rests on the defendants to

prove that the Power of Attorney was obtained by

coercion. Therefore, the evidence will have to be verified to

find out if the defendant      No.1 has proved that           his

signatures to the General Power of Attorney in question

were obtained forcibly by his father. Further, said

contention of the defendants in the legal notice implies

that   defendants   father   Krishnappa    had    voluntarily

executed the General Power of Attorney and it is the case

of the defendants that only defendant No.1 was forced by

his father to sign the GPA jointly along with other family

members. Hence, from the contention taken in the legal
                              38
                                                 OS No.25133, 25134
                                                      & 25137/2007


notices of the defendants, it is clear that the defendants

father had voluntarily executed the General Power of

Attorney. Now, it has only to be verified whether the

signatures of the defendant       No.1 had been forcibly

obtained to the General Power of Attorneys in question.

     16. Ex.D.19 and 20 have been issued by defendant

No.1 alone. The plaintiffs have contended that defendant

No.1's father and his brothers and sisters had not

authorized him to issue the said legal notices. In view of

the said contention, defendants have produced Ex.D.18

affidavit purportedly to have been executed on 25.02.1995

to show that his father and other family members have

authorized him to cancel the Power of Attorney documents

in question. Plaintiffs counsel has argued that the same

has been concocted in order to fill up the lacuna in the

legal notices wherein it is clearly mentioned that defendant
                             39
                                                OS No.25133, 25134
                                                     & 25137/2007


No.1 alone has issued the same to the plaintiffs. In this

backdrop, I proceed to consider whether the General

Power of Attorneys on the basis of which the Sale Deeds

have been got registered had been duly canceled by the

defendants and their family members prior to the plaintiffs

obtained the Regd. Sale Deeds on the strength of the said

General Power of Attorneys. Of-course, plaintiffs counsel

argues that the Sale Agreements and General Power of

Attorney had been executed by receiving the sale

consideration and therefore the General Power of Attorney

in question were coupled with interest and hence the

defendants could not have canceled the General Power of

Attorneys. General Power of Attorneys were irrevocable

and the notices issued as per Ex.D.19 and 20 have no value

in the eye of law. As a matter of fact Ex.D.29 and 30 are

the Deeds of Revocation of General Power of Attorney
                                40
                                                      OS No.25133, 25134
                                                           & 25137/2007


unilaterally executed by defendant No.1 on 23.03.1995,

revoking the GPA in favour of Nagarathnamma and

K.Ramaiah in respect of suit Nos.7 and 13 and 24

respectively. Plaintiffs have got sale deeds marked at Ex.P.3

and 23 on 15.12.1997 i.e., subsequent to the legal notice

marked at Ex.D.19 and 20 and Ex.P.39 Sale Deed on

21.03.1994 prior to legal notice. Of course, when the

plaintiffs obtained the Regd. Sale Deed dated.15.12.1997

and 21.03.1994, defendants father was still alive and

defendants have produced the death certificate of their father as

per Ex.D.45 which shows that he passed away on 07.12.2006 which is


just prior to filing of this suit. Ex.P.1 and 2 in respect of Site


Nos.15 and 24 are said to have been entered into

subsequent to Ex.P.19 and 20 legal notices.

      17. In this connection, evidence of Defendant No.1/

D.W.1 requires to be noted. During cross examination on
                              41
                                                  OS No.25133, 25134
                                                       & 25137/2007


pages-7 and 8 he admits that he had issued Legal notice to

the plaintiffs canceling the General Power of Attorney that

had been executed in their favour. At pages-7 and 8 of his

cross examination, he states that since some one inquired

him about one Krishnappa and handed over the Power of

Attorney stated to have been executed by the said

Krishnappa, he handed over the copy of the said G.P.A. to

his advocate and asked him to issue notice to the plaintiffs.

On one hand he states that he and his father Karishnappa

and other members together got the G.P.A. canceled and

on the other hand, he states that some one enquired him

about the General Power of Attorney            executed by

Krishnappa and handed over the copy of the same and

hence he in turn gave it to his counsel and got the GPA

canceled. Defendant No.1/D.W.1 has not made any effort

to explain what force was used by his father to make him
                              42
                                                   OS No.25133, 25134
                                                        & 25137/2007


to affix his signatures to the Sale Agreement and GPAs. in

question.   Instead   he   has    sought   to   give   dubious

explanation for the same by stating that he issued notice

because someone inquired with him about the General

Power of Attorney executed by Krishnappa and handed

over a copy of the same to him. If his father had forced

him to affix his signature to the documents and there was

a suit for partition filed by him against his father then how

they together issued the legal notice canceling the General

Power of Attorney demands an answer, that too, when in

the said suit defendant No.1 to 3 and their father and

other family members have all entered into a compromise

and obtained a compromise decree. Importantly, burden is

on the defendants to prove that the signatures of the GPA

had been obtained by forcing to affix the signatures. But,
                                   43
                                                           OS No.25133, 25134
                                                                & 25137/2007


defendants have not produced any plausible or cogent

evidence to accept the said contention.


      18. On page 14 of his cross examination, he admits

that Ex.P.37 (a to e) are his signatures in Ex.P.37 and then

states that he cannot identify his father's signature. Again

he admits that in Ex.P.38, he has affixed signature as per

Ex.P.38(a) to (d). His statement on page-14 is as follows:-



          "Signatures in Ex.P.37(a), Ex.P.37(b),        Ex.P.37(c),
     Ex.P.37(d), Ex.P.37(e) in Ex.P.37 are my signatures. I
     cannot identify the signature of my father. It is not true
     to suggest that my family members have signed Ex.P.37.
     In Ex.P.38, Ex.P. 38(a) , Ex.P. 38(b) , Ex.P. 38(c) and Ex.P.
     38(d) are my signatures. I know reading Kannada".


      In the legal notice he has admitted affixing his

signatures and has stated that he is canceling the G.P.A. on

the ground that his signatures were obtained forcibly.

Burden being on the defendants to prove that the
                                 44
                                                        OS No.25133, 25134
                                                             & 25137/2007


signatures had been taken forcibly to the documents,

defendants have not produced any cogent material before

the court to accept the said contention.             On the other

hand, evidence above clearly shows that defendant No.1

has   affixed   his   signatures      to   Ex.P.37    and    38-sale

agreements      and   General      Power      of    Attorneys      dtd.

14.12.1988      executed   in        favour    of    the     plaintiff

Nagarthnamma in respect of site Nos.7 and 13. However,

in respect of Site Nos. 15 and 24 in Sale Agreement at

Ex.P.1 dtd. 24.10.1996 and GPA at Ex.P.2 dtd. 24.10.1996,

defendant No.1 has not affixed signature and also Ex.P.1-

Sale Agreement is inchoate and the sale consideration is

not mentioned and on page-3 of the Sale Agreement,

blank space is left for mentioning the sale consideration. In

General Power of Attorney at Ex.P.2 also sale consideration

is not mentioned.
                              45
                                                  OS No.25133, 25134
                                                       & 25137/2007


     19. Plaintiffs counsel has placed reliance on a number

of decisions to contend that the General Power of Attorney

having had been executed by receiving sale consideration

same were coupled with interest and executants had no

power to revoke the said G.P.As. Learned counsel for the

plaintiffs has placed reliance on the decisions in Suraj

Lamp Industries Vs. State of Haryana; Hardip Kaur Vs.

Kailash and another to buttress the point.            Learned

counsel for plaintiffs has also relied on section 202 of the

Indian Contract Act, 1872 and Sec. 53-A of the Transfer of

Property Act, 1882.    Sale Agreement marked at Ex.P.38

which is dated 14.12.1988 shows that under the said Sale

Agreement entire sale consideration has been received by

the executants. Under the above said Sale Agreement

(unregistered Sale Deed) at Ex.P.38, in respect of each site,

sale consideration has been fixed at Rs.10,000/- and same
                             46
                                                OS No.25133, 25134
                                                     & 25137/2007


is shown to have been entirely paid and received. Said

documents have been executed by the defendants father

Krishnappa and his first wife's only son - defendant No.1,

his second wife Papamma and her children Rukkamma,

Rajamma, Muniraju (defendant No.2) and Manjunatha

(Defendant No.3); Bharathi and Roopa. Among them

defendant   Nos.2 and 3 and their sisters Bharathi and

Roopa have been shown as minors and they have been

represented by their father Krishnappa in the said

documents. Sale Agreement contain recitals that sites have

been formed in the land bearing Survey Number- 42 of

Arulukunte village measuring 1 Acre 16 guntas and in view

of the difficulty faced by them for meeting domestic

necessities, protection of minor children and their

educational expenses they are selling the sites formed in

the layout in the above land. Apart from the same, later in
                              47
                                                 OS No.25133, 25134
                                                      & 25137/2007


view of the dispute by the children of the second wife, an

Agreement has been entered into as per Ex.P.4 on 9.9.1996

(date wrongly typed as 9.9.1966 in Ex.P.4), Affidavit has

been executed on 24.10.1996 by Krishnappa, his 2 nd wife

Papamma and her sons-Defendant Nos.2 and 3, Daughters

Bharathi and Roopa. At the time of execution of the

affidavits, defendants 2 and 3 and Bharathi had become

majors and their sister Roopa was still a minor and she has

been represented by her father Krishnappa. In the said

affidavit they have confirmed that they have sold sites in

question as per Sale Agreement and General Power of

Attorneys executed by them and they have also ratified

the Sale deeds got registered on the basis of the G.P.As and

have also admitted delivery of vacant possession of the

sites to the purchasers and have stated No objection for

change of Katha in favour of the purchasers under the sale
                              48
                                                  OS No.25133, 25134
                                                       & 25137/2007


deeds executed by virtue of the General Power of Attorney.

Defendants 2 and 3 who are the signatories to the Affidavit

have not chosen to enter the witness box to deny their

signatures therein. In the Affidavit dtd. 24.10.1996 and

Agreement dtd. 9.9.1996 defendant No.1 is not a party.

Therefore, I am of opinion that even the above said

affidavit has been proved.



     20. In these suits relief of declaration of title has not

been sought and the defendants counsel has placed

reliance on the decision in the case of Anathula

Sudhakara Vs. P.Buchi Reddy (Dead) by L.Rs. Reported

in AIR 2008 S.C.2033 to contend that in the absence of

seeking the relief of declaration of title in the light of

serious dispute regarding the title of the plaintiff to the

suit, the above suit itself is not maintainable. In fact,
                                49
                                                     OS No.25133, 25134
                                                          & 25137/2007


plaintiffs counsel has also placed reliance on the said

decision to contend that when the title on the face of

records is clearly established, need for seeking declaration

of title does not arise and also if plaintiffs can establish

possession of the property independently, then also need

for seeking the relief of declaration of title, does not arise.

Learned counsel for the plaintiffs has also argued that

plaintiffs would be entitled to protect their possession of

the suit property      under section 53A of the Transfer of

Property Act as they had been put in possession                   by

receiving    entire    sale   consideration    and    therefore,

irrespective of question of title plaintiffs are entitled to

possession of their sites under the said provision.


      21. Learned counsel for defendants has placed

reliance    on   the   decision     in   U.Vijaya   Kumar        Vs.
                              50
                                                  OS No.25133, 25134
                                                       & 25137/2007


Malini.V.Rao reported in ILR 2016 Kar. 2670 to argue

that without the consent of the Principal, agent could not

have dealt on his own account and the Principal may

repudiate the transaction. Said proposition is at para-6 of

the said decision. Said principle has been stated in relation

to the transaction where material facts have been

dishonestly concealed by the Agent and advantage has

been taken of by the Agent. In this case, material discussed

show that by receiving the entire sale consideration Sale

Agreements and General Power of Attorneys as per Ex.P.37

and 38 were executed along with affidavit. Therefore, same

had created interest in favour of the Agreement holders-

cum-General Power of Attorney Holders and hence above

decision does not aid defendants case in the face of Sec.

202 of the Indian Contract Act, in so far as Ex.P.37 and 38

are concerned.
                              51
                                                 OS No.25133, 25134
                                                      & 25137/2007


     22. Learned counsel for defendants has relied on a

decision in Kewal Krishan Vs. Rajesh Kumar and ors,

DD 22.11.2021 in Civil Appeal No.6989-6992/2021 and

drawn attention to the proposition laid down at para-15 of

the said decision. Said decision lays down the Law with

respect to non payment of Sale price and its consequences.

But, in this case, Sale Agreement at Ex.P.38 clearly shows

that entire sale consideration was paid thereunder and

subsequently when again dispute arose from the side of

the second wife and children of Krishnappa, a settlement

has been reached and Affidavits have been sworn to by

reaffirming the sale of the suit sites by expressing no

objection for getting the katha changed in their names.

Hence, above decision also do not apply to the facts of

these cases which are under consideration, in so far as Site

Nos.7 and 13 covered under Ex.P.37 and 38.
                                  52
                                                         OS No.25133, 25134
                                                              & 25137/2007


      23. As regards the possession            of the plaintiffs is

concerned, Learned counsel for defendants has relied on a

decision in the case of Vasudev and Ors. Vs. Tukaram

Bhimappa Naik and ors., reported in ILR 2014 Kar.

4716 to contend that entries in revenue records are still in

the name of defendants and since the suit property is

agricultural   land,said      entries   have    significance        and

therefore, plaintiffs case that they are in possession of the

suit property cannot be accepted. Even though the entries

in revenue records are entitled to presumption under

section 133 of the Karnataka Land Revenue Act, they are

rebuttable     in   nature.    Admitted    facts    in    the       Sale

Agreements that layout of residential sites was formed and

sites were sold to the purchasers thereunder shows that

although no order for conversion of the land for non

agricultural use was taken, defendants family has formed
                              53
                                                 OS No.25133, 25134
                                                      & 25137/2007


sites in the revenue land and sold same to various persons.

There is clear recital in the Sale Agreements and also later

affidavits, about handing over of possession of the suit

schedule sites to the purchasers. Same clearly rebuts

presumption which were available in respect of the entires

in favour of defendants. Hence, said contention also falls

on ground.


     24. Defendants counsel has placed reliance on a

decision in the case of Jitendra Singh Vs. State of

Madhya    Pradesh     and   Ors,   reported    in   2021(2)

Kar.L.R.477 (SC) with respect to revenue entries. Here, in

this case, title is not being considered on the basis of the

revenue entires. Admittedly, suit property originally

belongs to Kirshnappa who is the father of defendants, he

having had acquired it under the family partition. But
                               54
                                                   OS No.25133, 25134
                                                        & 25137/2007


thereafter, defendants family has formed a layout of

residential sites and sold the sites to third parties including

the plaintiffs. They have executed unregistered General

Power of Attorney and on the strength of the same, in

turn they have among themselves executed Sale Deeds and

all the plaintiffs in these cases are members of the same

family. In the case of Rajni Tandan vs.Dulal Ranjan

Ghosh Dastidar, in Civil Appeal No.4671/2004, the

Apex court has held that even though the sale deed has

been executed on the basis of an unregistered General

Power of Attorney yet when same is executed by General

Power of Attorney Holder in his independent right, mere

fact that General Power of Attorney was unregistered

document does not prevent transfer of title. Apex court has

explained the reason for expecting documents to be

registered by highlighting that same is to safeguard the
                                 55
                                                        OS No.25133, 25134
                                                             & 25137/2007


interest of the contracting parties and to prevent

fraudulent transactions, the ratio laid down in Rajni

Tandon case as reflected in the head note and excerpts

thereunder is as follows:-


      ".A. Registration Act, 1908 - Ss. 33(1) and 32 -
    Presentation by exccutant of document on the basis of an
    unregistered power of attorney - Compulsory registration
    of power of attorney under S. 33 - When and to whom
    applicable - No allegation of fraud -- Effect - Vendor
    principal authorizing agent to execute a sale deed on the
    basis of an unregistered power of attorney (only
    notarized) - Agent (power-of-attorney holder) executing
    sale deed - Thereafter agent presenting sale deed for
    registration on the basis of the same unregistered power
    of attorney - Legality - Compulsory registration of power
    of attorney of an agent presenting a document for
    registration, held, would have been mandatory only if
    power- of-attorney holder (agent) presenting the
    document would not have been the executant As the
    power-of-attorney holder was the executant of the
    document, held, he was also legally competent to present
    the document for registration - Object of Registration Act,
    1908 being to prevent fraud, and no allegation of fraud
    since made, the registration, held, was proper B.
    Registration Act, 1908 - Object of, held, is designed to
    guard against fraud by obtaining a contemporaneous
    publication and an unimpeachable record of each
    document The High Court by the impugned order in
    second appeal, held, that the sale deed in favour of the
    appellant-plaintiffs was not properly registered. The High
                              56
                                                     OS No.25133, 25134
                                                          & 25137/2007


Court held that since the power of attorney was
admittedly, not a registered document and was simply
notarized, 1, power-of-attorney holder who executed and
signed the document on behalf of N, could not have
presented the document for registration in view of
Sections 32 and 33(1)(a) of the Registration Act, 1908
Allowing      the      appeal,    the     Supreme       Court
Held: Section 33 will come into play only in cases where
presentation is in terms of Section 32(0) of the
Registration Act, 1908. In other words, only in cases
where the person(s) signing the document cannot present
the document before the registering officer and gives a
power of attorney to another to present the
document that the provisions of Section 33 get
attracted. It is only in such a case, that the said power of
attorney has to be necessarily executed and
authenticated in the manner provided under Section
33(1)(a) of the Registration Act. Where a deed is executed
by an agent for a principal and the same agent signs,
appears and presents the deed or admits execution
before the registering officer, that is not a case of
presentation under Section 32(c) oft f the Act. (Paras 33
and 27) D. Sardar Singh v. Seth Pissumal Harbhagwandas
Bankers, AIR 1958 AP 107; Abdus Samod v. Majiran Bibi,
AIR 1961 Cal 540 overruled Motilal v, Ganga Bal, AIR 1915
Nag 18; Gopeswar Pyne v. Hem Chandra Bose, AIR 1920
Cal 316; Aisha Bibi , Chhaiju Mal, AIR 1924 All 148; Sultan
Ahmad Khan V. Sirajul Haque, AIR 1938 All 170; Ram
Gopal L Mohan Lal, AIR 1969 Punj 226; Goswami
Malli Vahuji Maharaj v. Purushottam Lal Poddar, AIR 1984
Cal 297, referred to In this cause, the presentation is by
the actual executant himself who had signed the
document on behalf of the principal and therefore, the
agent/power-of- attorney holder is entitled under Section
32(a) to present it for registration and to get it registered
even though the power of attorney was not a registered
                                   57
                                                          OS No.25133, 25134
                                                               & 25137/2007


    document and only notarized. In the facts of the present
    case, it is quite clear that I was given the full authority by
    N under the notarized power of attorney to transfer the
    The suit property and to execute the necessary
    document. It is an accepted position that the transfer
    deed was executed by / in the name and on behalf of N
    thereof. Therefore, for the purposes of registration office
    under Section 32(0), 1 is clearly the "person executing the
    document. The plea taken by the respondents that in
    order to enable / to present the document it was
    necessary that he should hold a power of attorney
    authenticated before the Sub-Registrar under the
    provisions of Section 33 is not tenublons per the language
    of Section 32 (Paras 34 and 28) The object of registration
    is designed to guard against fraud by obtaining a
    contemporaneous publication and an unimpeachable
    record of each document. The instant crise is one where
    no allegation of fraud has been raised. In view thereof the
    duty cast on the registering officer under Section 32 of
    the Act was only to satisfy himself that the document was
    executed by the person by whom it purports to have been
    signed. The Registrar upon being so satisfied and upon
    registration of the same being presented with a
    document to be registered had tightly to proceed with the
    (Para 29)26. We have merely drawn attention to and
    reiterated the well-settled legal position that SA/GPA/WIL


    In a much subsequent decision in the case of Suraj

Lamp Industries Pvt. Ltd. Vs. State of Haryana (2012)

1 SCC 656 the Apex court has though laid down that an

end should be put to the transactions of unregistered
                                  58
                                                         OS No.25133, 25134
                                                              & 25137/2007


General Power of Attorney it has been held that the said

decision is not intended to affect the bona fide

transactions which have taken place heretofore. In Suraj

Lamp Industries Pvt. Ltd. Case, at para-26 and 27, it is held

as under:-

        "26. We have merely drawn attention to and reiterated
     the well-settled legal position that SA/GPA/WILL
     transactions are not `transfers' or `sales' and that such
     transactions cannot be treated as completed transfers or
     conveyances. They can continue to be treated as existing
     agreement of sale. Nothing prevents affected parties
     from getting registered Deeds of Conveyance to
     complete their title. The said `SA/GPA/WILL transactions'
     may also be used to obtain specific performance or to
     defend possession under section 53A of TP Act. If they
     are entered before this day, they may be relied upon to
     apply for regularization of allotments/leases by
     Development Authorities. We make it clear that if the
     documents relating to `SA/GPA/WILL transactions' has
     been accepted acted upon by DDA or other
     developmental authorities or by the Municipal or
     revenue authorities to effect mutation, they need not be
     disturbed, merely on account of this decision.

        27. We make it clear that our observations are not
     intended to in any way affect the validity of sale
     agreements and powers of attorney executed in genuine
     transactions. For example, a person may give a power of
     attorney to his spouse, son, daughter, brother, sister or a
     relative to manage his affairs or to execute a deed of
                                 59
                                                      OS No.25133, 25134
                                                           & 25137/2007


     conveyance. A person may enter into a development
     agreement with a land developer or builder for
     developing the land either by forming plots or by
     constructing apartment buildings and in that behalf
     execute an agreement of sale and grant a Power of
     Attorney empowering the developer to execute
     agreements of sale or conveyances in regard to
     individual plots of land or undivided shares in the land
     relating to apartments in favour of prospective
     purchasers. In several States, the execution of such
     development agreements and powers of attorney are
     already regulated by law and subjected to specific stamp
     duty. Our observations regarding `SA/GPA/WILL
     transactions' are not intended to apply to such
     bonafide/genuine transactions"



Hence, considered in the light of the above said decisions,

though this is not a suit for declaration of title it cannot be

said that the plaintiffs have not derived ownership to the

suit proprieties, particularly under Ex.P.37, GPA and Ex.P.38

Sale Agreement and Ex.P.39 Sale Deed dtd. 21.03.1994.

Moreover, the Sale Agreement and Affidavit executed in

favour of plaintiffs clearly show that possession of the suit
                              60
                                                OS No.25133, 25134
                                                     & 25137/2007


schedule sites had been handed over thereunder by

receiving entire sale consideration.

     25. Of-course, Ex.P.1-Sale Agreement is inchoate and

it is not a contemporaneous document, and it is entered

into, subsequent to the dispute had arisen and hence, for

the sake of caution, transaction under Ex.P.1 Sale

Agreement and Ex.P.2 GPA relating to site Nos.15 and 27

may be rejected. I have further considered cross

examination of Pws.1 and 2 in the case. P.W.1 states that

Papamma (2nd wife of the defendants father) signed in his

presence, but actually she has put LTM. He states that only

after layout plan was shown, General Power of Attorney

was executed. When he was examined on 4.4.2009, he

has stated that even now suit property is vacant. He has

stated that now the defendants have leveled the land and

stored soil to make it appear as if there is no layout
                             61
                                                OS No.25133, 25134
                                                     & 25137/2007


formed. He states that after leveling the land, layout

cannot be identified as per the layout plan. He states that

two roads had been formed in the layout. On page-20 of

the cross examination, to a question that all defendants

are in possession of entire 1 Acre 16 guntas land in Survey

Number-42, he has said yes and then denied that

plaintiffs are not in possession. PW.2 who is son of PW.1

is not a material witness. He has seen suit sites once, one

month before giving evidence. Whereas, evidence of PW.1

is credible. He has denied the suggestion that the suit

schedule sites as mentioned in the Sale Deeds are not in

existence. From the contention of the defendants in the

written statement as well as the legal notices caused by

the defendant    No.1 and admissions elicited regarding

defendant No.1's signatures in Ex.P.37 and 38 during his

cross examination and his feigning ignorance regarding
                              62
                                                OS No.25133, 25134
                                                     & 25137/2007


signatures of other parties such as his father and other

family members in the said documents clearly show that

the defendants father, defendant No.2 and other family

members have executed same. Point for consideration at

present is whether the plaintiffs have proved their

possession of the suit schedule property as on the date of

the suit. So, in the cross examination of Pws.1 and 2 there

is nothing which shows that the plaintiffs were not in

possession of the suit schedule property particularly site

Nos. 7 and 13 as on the date of the suit.



     26. Now, in this circumstance, documentary evidence

discussed earlier will have to be considered. As already

held, plaintiffs have proved the Sale Agreement and

General Power of Attorney marked at Ex.P.37 and 38

executed in their favour. The said Sale Agreement clearly
                             63
                                                OS No.25133, 25134
                                                     & 25137/2007


disclose that the entire sale consideration was received

and possession was handed over thereunder. Of-course,

they are unregistered Sale Agreement in the nature of Sale

Deed. On the basis of the unregistered Sale Agreement

possessary interest of course cannot be considered to have

passed in view of bar under section 49 of the Registration

Act. Yet, the GPA has been executed and the plaintiffs have

secured the Sale Deed on the basis of the said G.P.As. As

held in the case of Rajni Tandon by the Supreme Court,

purpose of registration is to safeguard the interest of the

parties. When the evidence clearly shows that there were

bonafide sale consideration and the possession         of the

properties had been handed over to the purchasers that

too prior to later decision of the Apex court in Suraj Lamp

Industries case, which has prospective effect, I am of

opinion that the Sale Deed got registered by the plaintiffs
                                 64
                                                       OS No.25133, 25134
                                                            & 25137/2007


on the basis of the unregistered GPA, a decade before the

said later proposition of law was laid down, requires to be

given effect to, considering equity, in as much as in the

later decision, observations can be found that the ratio was

not   intended    to   apply    to   the    previous      bonafide

transactions. Further, even though the Sale Agreement is

unregistered and inadmissible under section 49 of the

Registration Act other than for specific performance, yet

the same can be considered for collateral purpose. In this

connection, a decision of Apex Court in the case of Bondar

Singh and others Vs. Nihal Singh and others reported

in (2003) 4 Supreme Court Cases-161 , at para-5 it is

held as under:-

         "5. The main question as we have already noted is
      the question of continuous possession of the plaintiffs
      over the suit lands. The sale deed dated 9.5.1931 by
      Fakir Chand, father of the defendants in favour of Tola
      Singh, the predecessor interest of the plaintiff, is an
      admitted document in the sense its execution is not in
                                  65
                                                         OS No.25133, 25134
                                                              & 25137/2007


       dispute. The only defence set up against said
       document is that it is unstamped and unregistered
       and therefore it cannot convey title to the land in
       favour of plaintiffs. Under the law a sale deed is
       required to be properly stamped and registered
       before it can convey title to the vendee. However,
       legal position is clear law that a document like the
       sale deed in the present case, even though not
       admissible in evidence, can be looked into for
       collateral purposes. In the present case the collateral
       purpose to be seen is the nature of possession of the
       plaintiffs over the suit land. The sale deed in question
       at least shows that initial possession of the plaintiffs
       over the suit land was not illegal or unauthorized.



In this case, what is referred to as Sale Agreement (Ex.P.38)

is actually an unregistered Sale Deed. It can be looked into

for   collateral   purpose      regarding      passing      of      Sale

consideration, initial possession and also nature of

property. An acknowledgment of receipt of money does

not   require registration. Hence, I am of the view that

based on the above discussed evidence, plaintiffs have

proved their possession of suit schedule site Nos. 7 and 13

as on the date of the suit. So far as site Nos. 15 and 24, in
                              66
                                                OS No.25133, 25134
                                                     & 25137/2007


view of inchoate sale agreement at Ex.P.1 and also as the

same is of the period subsequent to arising of dispute, for

the sake of caution, they are not accepted.



     27. Now, question is whether the defendants have

put up construction in the suit property during the

pendency of the suit in violation of the interim order of

temporary injunction which was modified into an order of

status quo in MFA No.9684/2004 by the High Court of

Karnataka, Bengaluru. Defendants have contended that

during the later stage of the suit that the buildings in

question in the suit property were already existing before

institution of the suit. In other words they are denying

putting up the construction in violation of the interim

order of injunction/status quo. Learned counsel for the

plaintiffs has called attention of the court to the order
                             67
                                                OS No.25133, 25134
                                                     & 25137/2007


passed by this court on the plaintiffs interlocutory

application which had been filed under order 39 Rules 1

and 2 of the CPC thereby granting an order of temporary

injunction   in their favour pending disposal of the suit.

Learned counsel for plaintiffs argues that while the said

I.As. were being heard, defendants counsel had made a

clear submission before the court that entire extent of 1

Acre 16 guntas of Survey Number- 42 is vacant land and

likewise suit schedule property    is vacant site and no

construction is put up in the suit schedule property. Both

counsel had made said submission and the same has been

noted by my Predecessor in order dtd. 26.07.2007 passed

on I.A.No.I at para-8 of the said Order. Thus, at para-8 of

the said order dtd. 26.07.2007 this court has observed as

follows:-
                                  68
                                                         OS No.25133, 25134
                                                              & 25137/2007


      " As per the arguments advanced by both counsel land
    measuring 1 acre 16 guntas of Survey Number- 42 is a
    vacant land likewise, the suit property is a vacant site. No
    construction put up in the schedule property."


     The above observation made by my Learned

Predecessor while disposing off IA No.I shows that

defendants counsel while submitting arguments on the

above said I.As. had made submission that entire land

measuring     1 Acre 16 guntas in Survey Number- 42

including the suit schedule sites were vacant and no

construction had been put up in the property at that time.

In fact, said submission binds the defendants in as much

as same is pertaining to point of fact and not concession

given in regard to question of law. Further, even though in

all the Sale Deeds got registered by plaintiffs, there is

mention of existence of an old house/shed measuring one

square, it is evident that the same is mentioned for
                              69
                                                 OS No.25133, 25134
                                                      & 25137/2007


registration purpose, as the suit sites were in agricultural

land and there was prohibition against registration of

revenue land sites. Therefore, said mention in sale deed

requires to be ignored.


     28. That aside, in the original written statement filed

in all these cases which are similar, defendants have

specifically pleaded that even as on the date of filing the

written statement there was no house in the suit property.

Said contention of the defendants is on page-2, para-2 of

their written statement. Further, at para-2 of the written

statement they have pleaded that the suit land is still an

agricultural land. Besides, defendants have no where

contended in their original written statement about putting

up any construction or existence of any construction in the

suit schedule property as on the date of filing the written
                              70
                                                  OS No.25133, 25134
                                                       & 25137/2007


statement. In the addl. Written statement filed by them, it

is contended that their sisters are in occupation of a

portion of land bearing Survey Number- 42/P5 and

cowshed and other constructions were all existing prior to

filing of suit. Thus, they have pleaded that subsequent to

filing of the suit they have not put up any construction in

violation of the interim order of injunction/status quo.


     29. This brings us to the report of the Court

Commissioner in the case. At the instance of the

defendants counsel court commissioner was appointed

who has conducted the local inspection and submitted his

report in OS No.25124/2007 and pursuant to the

objections filed to the same by the plaintiffs he has been

examined as C.W.1 and cross examined in the said case.

Ex.C.1 to C.12 have been marked through the Court
                              71
                                                 OS No.25133, 25134
                                                      & 25137/2007


Commissioner. Ex-C.5 is the Spot mahazar drawn by him

and Ex.C.6 is his Report and Ex C.7/1 to 40 and C.8/1 to 20

are the Photographs taken by the Court commissioner of

the suit schedule property during the local inspection. Ex

C.9 and 10 are the C.Ds. of the said photographs. Ex C.12 is

the statement of objections filed by the plaintiffs to the

Commissioner's Report. The certified copies of the

deposition of Court Commissioner and Exhibits have been

produced in this case. There are totally 13 connected suits.

According to the Report of the Commissioner, to the west

of the entire property bearing Survey Number-42/P5 there

is a road and there is another road which runs from West

to East in between the building where name of 'K.Bharathi'

was written and Zinc sheet scraps covered dumps area in

the said Survey Number- 42/P5 land was found. The Court

Commissioner noted boundaries for the entire land and
                             72
                                                OS No.25133, 25134
                                                     & 25137/2007


existence of shed in the southwest corner with the name

written on its western wall 'K.Manjunatha Reddy' who is

defendant No.2 in this case. He has further noted that

next to the said shed on the northern side there was a wall

constructed with cement bricks without plastering and next

to the said wall there was another shed on the northern

side and western wall of the said shed wall also bear board

with name 'K.Manjunatha Reddy' i.e., defendant No.2 and

there is a big gate to the north of the said shed facing

western side and towards north of the said gate there are

zinc sheet covering lock of wall around compound and the

defendant No.2 K.Manjunatha Reddy opened the gate and

scrap materials had been dumped in the said place which

was fully covered by zinc sheet on the compound wall and

next to the said zinc sheet covered area on the north side

there is a road from west to east and behind scrap
                             73
                                                OS No.25133, 25134
                                                     & 25137/2007


materials dumped area and south west wall mentioned

above there were cattle tied and dairy activity could be

seen and on the west side of the two sheds bearing the

name of 'K.Manjunatha Reddy' there was debris. Actually

the above said road runs from West to East on the south

west cattle shed was found and on the south west side of

the road referred above, sheet roof building had been

constructed with writing on its western wall as 'This house

belongs to K.Bharathi Survey Number- 42/P5' and towards

east of said building there is vacant land and there is

compound wall towards north of this vacant land and on

the compound wall on the eastern side after the building

of 'K.Bharathi' name of 'Roopa D/o Krishnappa' is written

and then towards east of the same compound wall another

name   'Padma    D/o   Krishnappa'   was   written.     Court

commissioner states that a huge cow-dung was stored in
                              74
                                                  OS No.25133, 25134
                                                       & 25137/2007


the said place and next to Bharathi's property till eastern

boundary it was vacant except for storage of cow dung. It

is further stated that towards north of the building referred

as 'K.Bharathi' there is compound wall and there is western

side road towards north having a curve and near the said

curve there was a wall on the northern side with a gate and

on the western wall there was writing 'This property

belongs to K.Gopal S/o Krishnappa Survey Number- 42/P5,

Aralukunte village' who is defendant No.1. There was no

agricultural activities on the land other than dairy activity

with the structures mentioned above in the above said

Survey Number land.


     30. Above said report of the court commissioner

which has not been objected to by the defendants show

that as on the date of the said Commissioner conducted
                              75
                                                  OS No.25133, 25134
                                                       & 25137/2007


the   local   inspection   on     12.01.2013   above         said

constructions of sheds, compound walls and storage of

scrap material was found. In fact, photos of the same have

been produced by the Court Commissioner. Since it has

been held that the suit land was vacant as on the date of

the suit in view of the written statement pleadings and also

submissions made by both the counsels during hearing of

I.A.NO.I, which has been noted in the order dtd.

26.07.2007    by    my     learned    Predecessor,         court

commissioner's above said finding shows that the above

said constructions have been made subsequent to filing of

the suit. That too, when there was an interim order of

injunction/status quo in respect of the suit property.

Cumulative upshot is that temporary and some permanent

like constructions have been put up in the suit schedule

property subsequent to filing of the suit in violation of the
                               76
                                                  OS No.25133, 25134
                                                       & 25137/2007


interim order granted in the case. Order sheet shows that

on 6.2.2007 interim order of injunction was granted with

direction to the plaintiffs and defendants to maintain

status quo till disposal of the I.A. No.I, thereafter by order

dtd. 26.07.2007 order of temporary injunction to restrain

the defendants from interfering with plaintiffs possession

of the suit property till disposal of the suit was granted by

allowing IA No.I filed by the plaintiffs. Again in MFA

No.9684/2004 said order has been modified with a

direction to both the parties to maintain status quo.

Therefore, from the beginning of the suit there was interim

order of status quo/temporary injunction/status quo till

date. When such is the case, plaintiffs have established that

the suit lands were vacant as on the date of the suit. Now,

the court commissioner report shows that there are some

temporary and permanent structures put up in the suit
                               77
                                                      OS No.25133, 25134
                                                           & 25137/2007


schedule sites spreading over the entire land in Survey

Number-42/P5.      Natural   corollary   is    that    the       said

constructions have been put up subsequent to institution

of the suits in violation of the interim orders in force.


      31. Further, in the cross examination of the Court

Commissioner      Learned     counsel    for    plaintiffs        has

confronted some recent photographs of the suit schedule

properties as per Ex.P.114 to 117. When Ex.P.114 photo

was confronted, the Court Commissioner/C.W.1 has

admitted that the said phone pertains to the same

property which is in dispute and it was inspected by him.

But, then he has stated that when he inspected, nature of

the property was different from what is seen in the photo

confronted to as per Ex.P.114. Similarly, he has admitted

Ex.P.115 Photograph and Ex.P.116 Photo. He states that the
                             78
                                                OS No.25133, 25134
                                                     & 25137/2007


Shed marked in Ex.P.116 was not existing when he

conducted the local inspection. So, same shows that

subsequent to the Court Commissioner conducted the

local inspection and submitted report, again constructions

have been made in the suit properties. Similarly in respect

of Ex.P.117 Photograph Court Commissioner has admitted

that when he conducted the local inspection there was zinc

sheet for the roof, but now same has been changed. He

admits that in his report he has wrongly mentioned the

sheet roof building on which name of K Bharathi is written

has to be situated on the south western side instead of

north western side. Evidence of Court Commissioner and

the above photographs which were admitted by him show

that not only after institution of the suit and passing of

interim order constructions have been put up in the suit

schedule property, but also even after court commissioner
                              79
                                                       OS No.25133, 25134
                                                            & 25137/2007


conducted the local inspection and submitted the report

further constructions have been put up. Though the

defendants   claim   that   their    sisters    put    up      some

constructions,   photographs        taken      by     the      Court

Commissioner show that on two sheds name of Defendant

No.2 K.Manjunatha Reddy had been written and on one

wall the name of first defendant is written. C.W.1/Court

Commissioner has not been cross examined                    by the

defendants counsel. Preponderance of evidence shows

that it is the defendants who have put up the construction

of the said buildings in the suit property            as well as

remaining portion in Survey Number-42 of Aralukunte

village measuring    1 Acre 16 guntas. Since it is clearly

established that when the suit was filed entire land

measuring 1 Acre 16 guntas was vacant and an interim

order has been passed in favour of the plaintiffs
                             80
                                               OS No.25133, 25134
                                                    & 25137/2007


immediately upon entering appearance by the defendants,

it is manifest that constructions have been put up and

subsequent to the granting of interim order of injunction

and status quo in respect of the suit property       by the

defendants. In the written statement defendants have

claimed that the suit schedule property was still an

agricultural land as on the date of their filing the same.

But, the evidence of the Court Commissioner shows that

when he conducted the local inspection the suit property

did not have nature of agricultural land. Apart from that

already constructions had been put up. Whereas, while

submitting the arguments on I.A.No.I it has been recorded

that both counsels have made submissions that entire land

measuring 1 Acre 16 guntas in question was vacant as on

the said date.
                             81
                                                OS No.25133, 25134
                                                     & 25137/2007


     32. From the above said evidence, I am of opinion

that the plaintiffs have proved that they were in lawful

possession of the suit schedule site Nos.7 and 13 as on the

date of the suit. They have also proved that during the

pendency of the suit defendants have illegally put up Zinc

sheet shed, compound wall and stored scrap material in

the suit property. It is also established from the above

discussed evidence that the defendants have put up

further constructions as well as above constructions in

violation of the interim order/status quo granted in the

case. Consequently, Issue No.1 and Addl. Issue No.1 in

OS No.25133/2007 and OS No.25134/2007 are answered in

negative   and OS No. 25137/ 2007 is answered in the

affirmative.

     33. Issue No.2 in OS No.25133/2007, 25134/

2007 and 25137/2007:- Discussions made on Issue No.1
                               82
                                                  OS No.25133, 25134
                                                       & 25137/2007


and Addl. Issue No.1 amply prove that the defendants have

interfered with the plaintiffs possession of the suit

schedule properties Site Nos.7 and 13. In respect of site

No.15 and 24 suit claim have been answered in negative.

Plaintiffs have proved that the suit schedule site Nos.7 and

13 had been sold under Sale Agreements and General

Power of Attorneys by handing over possession of the

properties to the purchasers and afterwards when some

dispute had arisen, parties reached a settlement and

executed Affidavits thereby swearing to the fact that the

said suit schedule sites have been sold to the plaintiffs by

executing the General Power of Attorneys and hence they

ratified the ownership of the respective plaintiffs in respect

of the suit schedule sites. In fact, Sale Agreements referred

to above are in the nature of unregistered sale deeds. They

have been executed as Sale Deeds along with the General
                                83
                                                       OS No.25133, 25134
                                                            & 25137/2007


Power of Attorney, most probably due to prohibition of

registration imposed by the Government in respect of

revenue   sites.   But, even        after   entering   into      such

settlements defendants have not stopped their claim over

the suit property. Said fact itself shows that the defendants

were interfering with plaintiffs possession of the suit

schedule property. Therefore, plaintiffs have proved cause

of action for the suit. Consequently, Issue No.2 in OS

No.25133/2007, OS No.25134/2007 are answered in

negative and OS No.25137/2007 is answered in the

affirmative.

     34. Additional Issue No.2 in OS No.25133/2007,

25134/2007, & 25137/2007:- Suit has been filed initially

for the relief of permanent injunction. Cause of action is

claimed to have occurred on 03.01.2007 when the

defendants tried to interfere with possession of the suit
                                84
                                                      OS No.25133, 25134
                                                           & 25137/2007


schedule property. Suit has been filed in the same year.

Therefore, relief of permanent injunction sought in the

suit is within the period of limitation. So far as the relief of

mandatory injunction, it has been claimed by way of

amendment during the pendency of the suit. Plaintiffs have

sought the said relief following the defendants violating the

interim     order   of   injunction   and   putting      up       the

constructions and changing the nature of the suit schedule

property. Hence, same is also within the period of

limitation. Defendants contention that suit is barred by

limitation has not been substantiated in any manner.

Consequently, Addl. Issue No.2 in OS No.25133/2007, OS

No. 25134/2007 and OS No.25137/2007 is answered in the

negative.

      35. Additional Issue No.3 in OS No. 25133/2007,

25134/2007 & 25137/2007:- Defendants have contended
                              85
                                                  OS No.25133, 25134
                                                       & 25137/2007


that the court fee paid is insufficient. But, the suit is

originally filed for the relief of permanent injunction by

paying the requisite court fee of Rs.25/- by valuating the

suit under section 26(c) of the Karnataka Court Fees and

Suits Valuation Act. During the pendency of the suit,

defendants have put up constructions in the suit property

by violating the interim order of injunction/ status quo

granted in the case and hence, plaintiffs have sought the

relief of mandatory injunction. When the defendants have

violated the interim order of injunction/status quo and

changed the nature of the suit property, court is bound to

restore the suit property to its original status in order to

ensure justice. Therefore, said relief of mandatory

injunction sought for by the plaintiffs having arisen in view

of the defendants putting up constructions in violation of

the interim orders of injunction/status quo, Plaintiffs are
                               86
                                                    OS No.25133, 25134
                                                         & 25137/2007


not required to pay further court fee on the same. They are

not required to seek relief of possession separately. This is

settled position of Law. Therefore, contention of the

defendants that the court fee paid is insufficient cannot be

accepted.   Consequently,     Addl.   Issue   No.3        in     OS

No.25133/2007,     OS   No.25134/     2007    and      OS       No.

25137/2007 is answered in the negative.



       36. Issue No.3 and Additional Issue No.4 in OS

No.25133/2007, 25134/2007 & 2513/ 2007:- To sum up

the cases, plaintiffs have proved that they have been put in

possession of the suit schedule property viz., site Nos. 7

and 13 (OS No.25137/2007) initially under the unregistered

Sale   Agreement    cum     unregistered   Sale   Deed         dtd.

14.12.1988. At the same time, General Power of Attorney

(unregistered) has been executed in respect of each site in
                              87
                                                  OS No.25133, 25134
                                                       & 25137/2007


favour of the purchaser. In turn on the basis of the General

Power of Attorney executed by the defendants father,

Defendant No.1 and some of their family members-GPA

Holders cum unregistered Sale Agreement/Sale Deed

holders have executed Regd. Sale Deed in favour of the

respective plaintiff in OS No.25137/2007. Thereafter, the

defendants vendor's second wife's children have raised

dispute and then another Agreement dtd.09.09.1996 has

been entered into between the purchasers on one side and

defendants father Krishnappa, his second wife Papamma

and her children on the other side. In the said further

Agreement    purchasers/ plaintiffs have agreed to make

additional payments to the defendants father, his second

wife and her children in a sum of Rs.3,35,000/- and out of

the same, Rs.30,000/- per site for 17 sites and Rs.5,000/-

per site for 7 sites . In the said agreement, purchasers have
                              88
                                                  OS No.25133, 25134
                                                       & 25137/2007


agreed to pay additional amount on or before 9.11.1996

and it has further been agreed that if the vendors fail to

accept the said sum and to give letter to the competent

authority for transfer of katha, second party/purchasers

shall be at liberty to enforce the said Agreement by filing a

suit for Specific performance. It is the contention of the

defendants' counsel that as per the said term of the

Agreement dated 9.9.1996, plaintiffs ought to have filed a

suit for specific performance. Whereas, it is plaintiffs

counsels contention       that subsequent to the said

Agreement the very same parties to the Agreement dtd.

9.9.1996 who are defendants father Krishanppa, his second

wife Papamma and her sons Defendants 2 and 3 and

daughters Bharathi and Roopa have sworn to the Affidavit

dtd. 24.10.1996. In this connection, plaintiffs counsel has

relied on a decision of Apex court in the case of
                                  89
                                                          OS No.25133, 25134
                                                               & 25137/2007


S.Chattanatha Karayalar Vs. The Central Bank of India

Ltd., reported in AIR 1965 Supreme Court 1856. In said

case at para-3, it is held as under:-

      " The Principle is well established that if the transaction
     is contained in more than one document between the
     same parties they must be read and interpreted
     together and they have the same legal effect for all
     purposes as if they are one document ".


 The above said affidavit has been sworn to within the

specified time mentioned in the Agreement dtd.9.9.1996.

In the said affidavit, deponents above have categorically

stated that they have sold the suit sites in question and

delivered the vacant possession of the sites and the

purchasers are enjoying the same without any trouble

from whomsoever and the deponents have no right over

the sites and they have no objection to transfer katha in

favour of the purchasers under the Sale Deed. In addition

to the same, in the said affidavit they state that they have
                              90
                                                  OS No.25133, 25134
                                                       & 25137/2007


delivered rough plan pertaining to the suit schedule site for

identification. When the admitted signatures of the

defendant    No.1 in the Sale Agreements and General

Power of Attorneys are taken into consideration and the

fact that the signatures of the defendants father

Krishnappa in the said     documents is not in dispute is

taken into consideration and the admitted signatures of

the defendants father in the Sale Agreements and General

Power of Attorney are compared with the signatures of the

defendants father Krishnappa in the Agreement and

Affidavit dtd. 9.9.1996 and 24.10.1996, they clearly tally

with each other. Then defendant No.1 states he does not

know whether his father, his second wife and her children

have signed the documents in question, defendants 2 and

3 being signatories to the said Agreements were required

to enter the witness box and give evidence. Of-course, in
                            91
                                              OS No.25133, 25134
                                                   & 25137/2007


the Agreement Ex.P.6, Papamma is shown to have affixed

her signature. However, in other documents she has

affixed LTM. Similarly Defendant Nos.2 and 3 have signed

in Kannada Language, but in the Affidavit dtd 24.10.1996

they have affixed their signature in English language and

Papamma has also affixed her LTM and not put her

signature. Signature of Krishnappa in the admitted Sale

Agreement and GPA tally with the signatures attributed to

him in the Agreement dtd. 9.9.1996 and Affidavit dtd.

24.10.1996. Importantly, defendant Nos.2 and 3 ought to

have entered the witness box to deny the signatures

attributed to them in the affidavit dtd. 24.10.1996, but

same has not been done. Whereas, in the Sale Agreements

and General Power of Attorneys defendant No.1, his father

Krishnappa, his father's second wife papamma and her

daughters Rukkamma and Rajamma have affixed their
                             92
                                               OS No.25133, 25134
                                                    & 25137/2007


signatures/LTM as the case may be. Whereas, in the Sale

Agreements and General Power of Attorneys defendant

No.1, his father Krishnappa, his father's second wife

Papamma and her daughters Rukkamma and Rajamma

have affixed their signatures/LTM as the case may be.

These documents cannot be doubted, because in the legal

notice issued by the defendant No.1 he claims that they

had been made to forcibly put the signatures by his father

Krishnappa which imply that the said documents had been

executed by them. On one hand, it can be presumed that

defendants father Krishnappa was acting as kartha of the

family and on the other hand his only son from his first

wife defendant No.1, his second wife Papamma and her

adult daughter at that time Rajamma have subscribed to

the said documents. Here the point is whether the

possession has been handed over to the purchasers under
                              93
                                                 OS No.25133, 25134
                                                      & 25137/2007


the said documents. Since the defendants father ,

defendant No.1 and adult daughter of the second wife,

another daughter have signed the said deeds being adult

members of the family, it can be safely concluded that they

have handed over the possession of the sites sold

thereunder to the respective purchasers. Moreover, the

minor children after attaining majority even if had dispute

regarding   sale, remedy for them was to file a suit for

avoiding the said sale transactions. But, in the Partition

suit in OS No.8415/1996, the purchasers have not been

made parties. Therefore, independent of the further

Agreement dtd. 9.9.1996 and Affidavit dtd. 24.10.1996, in

the absence of minor family members of the defendants

not filing any suit against the purchasers for avoiding sale

transactions, Plaintiffs title under the Sale Deeds got

registered by them on the basis of the General Power of
                                 94
                                                 OS No.25133, 25134
                                                      & 25137/2007


Attorney     which was coupled with interest cannot be

faulted with. Suit having been filed on the basis of the

possession    of the suit sites, above discussed material

abundantly corroborate the plaintiffs case that possession

of the suit site Nos.7 and 13 had been delivered under the

above said sale transactions.


     39. In this background, submission made by the

Learned counsel for defendants before the court that the

suit schedule property was vacant at the time of

considering I.As filed by the plaintiffs under Order 39

Rules 1 and 2 of the CPC. shows that suit schedule sites

were at least vacant at that point of time. As mentioned

earlier in the written statement originally filed by the

defendants, they have not taken any contention that they

have got the sheds or other constructions put up in the suit
                              95
                                                  OS No.25133, 25134
                                                       & 25137/2007


schedule sites as on the date of the suit or even at the time

of filing the written statement. They have not taken any

such contention when they originally filed the written

statement. Further, in the land bearing Survey Number- 42

measuring 1 Acre 16 guntas, vendors family has retained a

number of sites for themselves. If their existed some shed

in the said portion before filing the suit it cannot be held

that the sheds were existing in the suit schedule sites as on

the date of the suit. Therefore, submission of the Learned

counsel for defendants that the land is completely vacant

can be accepted at least regarding the suit schedule sites.

When the Sale Agreements show that possession of the

suit property was delivered to the purchasers, burden is

on the vendors to show as to when and how they have

repossessed the sites and put up the constructions. By

remaining silent on the said aspect while filing the written
                              96
                                                 OS No.25133, 25134
                                                      & 25137/2007


statement, defendants cannot turn around to state that

there were already sheds constructed. Therefore, I am of

opinion that evidence on record is sufficient to hold that

the suit schedule site/sites were vacant as on the date of

the suit, despite some contradictory stray statements

forthcoming from some of the purchasers while deposing

evidence before the court.

     40. As regards identification of the suit property is

concerned, layout plan given to the purchasers by the

vendors has been produced in the connected cases before

the court. In this case, a xerox copy is available and not

marked. On the other hand defendants have produced

another layout plan. But, the defendants layout plan has

been got prepared in accordance with the partition they

have effected themselves after obtaining compromise

decree in the partition suit. Same is subsequent to the sale
                              97
                                                 OS No.25133, 25134
                                                      & 25137/2007


transactions in favour of the purchasers. Recitals in the

Sale Agreements can be taken into consideration for

collateral purpose regarding passing of consideration and

also nature of the property at that time. Sale Agreements

recitals show sites had been formed by the vendor's family

in the land bearing Survey Number- 42 measuring 1 Acre

16 guntas. There is clear recital that they had formed sites.

Therefore, it is clear that a residential layout had been

formed in the agricultural land when the Sale Agreement

and General Power of Attorneys were executed for

consideration. In the light of the said averments,

defendants layout plan based on the compromise partition

decree obtained by them cannot be accepted. It is very

clear that for the purpose of suit, the defendants have

created the said layout plan and they have also obtained

compromise decree in collusion. The blue print copies of
                              98
                                                 OS No.25133, 25134
                                                      & 25137/2007


the layout plan produced by the plaintiffs in connected

cases bear the signatures of the defendants father

Krishappa, LTM of Papamma (LTM not visible, but

endorsement regarding LTM is visible) and signatures of

defendants 2 and 3 and their sister by name Bharathi.

Defendants 2 and 3 have not chosen to enter the witness

box to deny the said signatures and whereas DW.1/

Defendant No.1 feigns ignorance about the signatures of

the said parties. As already mentioned in the affidavit dtd.

24.10.1996 marked as Ex.P.5 and P.40 there is mention

about handing over the signed rough plan pertaining to the

schedule property for identification. There is no reason

why the plan produced by the plaintiffs should not be

accepted, though it is not an approved plan. For the

purpose of identification of the sites purchased by the

plaintiffs, said layout plan may be accepted.
                               99
                                                   OS No.25133, 25134
                                                        & 25137/2007


      41. Evidence discloses that now the entire land has

been leveled and hence layout as formed is not capable of

identification. However, on the basis of the layout plan and

boudaries mentioned in their sale agreements and General

Power of Attorneys which are produced by the plaintiffs,

with the assistance of a technical person as court

commissioner it would be possible to re-construct the

layout and locate the respective sites of the plaintiffs in the

said land. Hence, contention that the suit sites are not

capable of identification cannot be accepted in the case.


      42. Commissioner report shows that now the

compound wall have been constructed haphazardly and

there are some sheds in the land and even after he

conducted the local inspection,s subsequently another

shed has been constructed as pointed out in the photos
                             100
                                                 OS No.25133, 25134
                                                      & 25137/2007


confronted to him and the roof of the some other shed has

been changed. Commissioner report does not help in

knowing in which suit site compound wall has been

constructed and in which suit site sheds have been

constructed. But one thing is clearly established that after

an order of temporary injunction/status quo was granted,

the defendants have put up constructions of some sheds

and compound walls in the sites sold by them. Hence,

there is clear violation of the interim order of status quo/

temporary injunction which had been granted in the case.

In disobedience to the order of the court, defendants have

undertaken further constructions and changed the nature

of the suit schedule property. In this backdrop decision of

the Apex court in the case of Delhi Development

Authority Vs. Skipper Construction Co. (P) Ltd. and

another, reported in (1996) 4 SCC 622, relied on by
                                  101
                                                           OS No.25133, 25134
                                                                & 25137/2007


Plaintiffs counsel requires to be taken note of. At para-18

to 21 of the said decision it has been held as below:-


       "18. The above principle has been applied even in the
     case of violation of orders of injunction issued by Civil
     Court. In Clarke v. Chadburn (1985 (1) All. ER 211), Sir
     Robert Megarry V-C observed:

            "I need not cite authority for the proposition
       that it is of high importance that orders of the
       Court should be obeyed, willful disobedience to
       an order of the Court is punishable as a contempt
       of Court, and I feel no doubt that such
       disobedience may properly be described as being
       illegal. If by such disobedience the persons
       enjoined claim that they have validly effected
       some charge in the rights and liabilities of others,
       I cannot see why it should be said that although
       they are liable to penalties for contempt of Court
       for doing what they did, never the less those acts
       were validly done. Of course, if an act is done, it is
       not undone merely by pointing out that it was
       done in breach in law. If a meeting is held in
       breach of an injunction, it cannot be said that the
       meeting has not been held. But the legal
       consequences of what has been done in breach of
       the law may plainly be very much affected by the
       illegality. It seems to me on principle that those
       who defy a prohibition ought not to be able to
       claim that the fruits of their defiance are good,
       and not tainted by the illegality that produced
       them."
                             102
                                                     OS No.25133, 25134
                                                          & 25137/2007


     19. To the same effect are the decisions of the
  Madras and Calcutta High Courts in Century Flour
  Mills Limited v. S. Suppiah & Ors.(AIR 1975
  Madras 270) and Sujit Pal v. Prabir Kumar Sun
  (AIR) 1986 Calcutta 220). In Century Flour Mills
  Limited, it was held by a Full Bench of the Madras
  High Court that where an act is done in violation
  of an order of stay or injunction, it is the duty of
  the Court, as a policy, to set the wrong right and
  not allow the perpetuation of the wrong-doing.
  The inherent power of the Court, it was held, is
  not only available in such a case, but it is bound
  to exercise it to undo the wrong in the interest of
  justice. That was a case where a meeting was held
  contrary to an order of injunction. The Court
  refused to recognise that the holding of the
  meeting is a legal one. It put back the parties in
  the same position as they stood immediately
  prior to the service of the interim order.

   20. In Suraj Pal, a Division Bench of the Calcutta High
Court has taken the same view. There, the defendant
forcibly dispossessed the plaintiff in violation of the
order of injunction and took possession of the property.
The Court directed the restoration of possession to the
plaintiff with the aid of police. The Court observed that
no technicality can prevent the Court from doing justice
in exercise of its inherent powers. It held that the object
of Rule 2-A of Order 39 will be fulfilled only where such
mandatory direction is given for restoration of
possession to the aggrieved party. This was necessary, it
observed, to prevent the abuse of process of law.

21. There is no doubt that this salutary rule has to be
applied and given effect to by this Court, if necessary , by
over-ruling any procedural or other technical objections.
                                103
                                                      OS No.25133, 25134
                                                           & 25137/2007


     Article 129 is a constitutional power and when exercised
     in tandem with Article 142, all such objections should
     give way. The Court must ensure full justice between the
     parties before it".


     In a number of decisions Apex court has held that

when the defendants forcibly dispossess the plaintiff in

violation of the order of injunction or change the nature of

the property by disobeying the order of injunction, if

necessary by overruling any procedural or technical

objections, courts must ensure that full justice is made

between the parties. It has been held that court can invoke

inherent power to remove the mischief. In the above

decision, it has been further held that the courts in India

are not only courts of Law, but also courts of equity.

Therefore, law is very clear that when there is disobedience

to the interim order of the court and violation of the

interim order of injunction by the defendants, court can
                              104
                                                  OS No.25133, 25134
                                                       & 25137/2007


invoke inherent power to do justice. I am of opinion that

said principle aptly apply to the facts of this case and the

technicalities and procedural objections cannot be allowed

to stand in light of the above position of law.


      43. Now, having concluded that the suit schedule

sites in particular were vacant as on the date of the suit

and the defendants have encroached upon same by

putting up various constructions such as haphazard

compound walls and sheds, and by storing scrap materials,

etc., I am of opinion that by an order of mandatory

injunction defendants should be directed to remove the

encroachments on the suit schedule site Nos.7 and 13 and

hand over the vacant possession of the same to the

plaintiff in OS No.25137/2007 and also grant consequential

decree of permanent injunction to restrain the defendants
                             105
                                              OS No.25133, 25134
                                                   & 25137/2007


from interfering with plaintiffs possession of the said

sites. Consequently, Issue N.3 and Addl. Issue No 4 in OS

No.25133/2007 and 25134/2007 are answered in the

negative and in OS No.25137/2007 is answered in the

affirmative.


     44.Issue No.4 in OS No.25133/2007, 25134/2007

and OS No.137/2007:- For the reasons stated above, I

proceed to pass the following :-




                         ORDER

Suits filed by the Plaintiffs in OS No.25133/2007 and OS No.25134/2007 are hereby dismissed with costs. 106

OS No.25133, 25134 & 25137/2007 Suit filed by the Plaintiff in OS No.25137/2007 is hereby decreed with costs.

The Defendants in OS No.25137/2007 and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suit at their cost within a period of three months and hand over vacant possession of the same to the plaintiff.

In default, it is ordered that the plaintiff shall be at liberty to execute this decree and remove the encroachments on the suit schedule site and take possession of the 107 OS No.25133, 25134 & 25137/2007 same through court process and recover the cost from the defendants.

Further, plaintiff in OS No.25137/2007 is granted a consequential Decree of permanent injunction thereby restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule site.

Keep original of this Judgment in OS No.25133/2007 and copies thereof in OS No.25134/2007 and OS No.137/2007.

Draw decree accordingly.

--

(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 19 th day of March, 2022)

--

108 OS No.25133, 25134 & 25137/2007 (D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c.IV ACC & SJ.,Mayo Hall, Bengaluru.

109

OS No.25133, 25134 & 25137/2007 ANNEXURE IN OS No.25133/2007 OS No.25134/2007 & OS No.25137/2007

1. List of witnesses examined for the plaintiffs:

   P.W.1            Sri.Dasappa

   P.W.2            Sri.Gangadhar


2. List of witnesses examined for defendants:-

D.W.1 Sri.Gopal

3. List of witnesses examined for Court Commissioner:-

C.W.1 Sri.P.Venkataramana

4. List of documents exhibited for the plaintiff:

Ex.P.1 Agreement of sale dtd.24.10.1996 Ex.P.2 General Power of Attorney Ex.P.3 Sale Deed dtd. 15.12.1997 Ex.P.4 Notarized copy of the Agreement dtd.09.09.1996 110 OS No.25133, 25134 & 25137/2007 Ex.P.5 Affidavit of Krishnappa Ex.P.6-7 Assessment Register Extract Ex.P.8-10 Tax paid receipts Ex.P.11-20 S.A.S receipts Ex.P.21 Encumbrance Certificate Ex.P.22 General Power of Attorney Ex.P.23 Sale Deed dtd. 15.12.1997 Ex.P.24 Assessment Register Extract Ex.P.25-34 S.A.S. receipts Ex.P.35-36 Encumbrance Certificates Ex.P.37 General Power of Attorney Ex.P.38 Agreement of Sale Ex.P.39 Sale Deed dtd. 21.03.1994 Ex.P..40 Affidavit Ex.P.41 Assessment Register Extract Ex.P.42-51 S.A.S. receipts 111 OS No.25133, 25134 & 25137/2007 Ex.P.52-53 Encumbrance Certificates Ex.P.54 Photographs with C.D. Ex.P.55 Certified copy of the deposition in OS No.25133/2007

5. List of documents exhibited for defendants:

Ex.D.1-2 Certified copy of the Encumbrance Certificates Ex.D.3-5 Certified copy of the RTC Ex.D.6 Certified copy of the compromise petition in OS No.8415/1996 Ex.D.7 Certified copy of the final decree in OS No.8415/1996 Ex.D.8 Certified copy of the Layout plan Ex.D.9 Encumbrance Certificate Ex.D10 Mutation Register Extract Ex.D.11-12 RTC Ex.D.13-14 Certified copy of the Tax receipts 112 OS No.25133, 25134 & 25137/2007 Ex.D.15-16 Encumbrance Certificates Ex.D.17 Certified copy of the tax receipts Ex.D.18 Certified copy of the Affidavit Ex.D.19 Copy of the notice issued to the plaintiff Ex.D.20 Copy of the notice issued to K.Ramaiah Ex.D.21-22 Postal receipts Ex.D.23 Certificate of Posting Ex.D.24-25 Postal acknowledgment Ex.D.26 Copy of the caveat petition Ex.D.27 Certified copy of the Order sheet in RFA No.1022/2007 Ex.D.28 Death Certificate of Krishna Reddy Ex.D.29-30 Revocation of Power of Attorney Ex.D.31 Certified copy of the Final Decree in OS No.8415/1996.
Ex.D.32 Copy of Form 'B' Property Register 113 OS No.25133, 25134 & 25137/2007 Ex.D.33 Copies of Tax paid receipts Ex.D.34-35 Copy of the Final decree in OS No.8415/1996 dtd. 14.02.2007 Ex.D.36 Copies of the Record of Rights in respect of Survey Number-42/1 Ex.D.37 Copy of Katha Certificate. Dtd.
27.12.2013 Ex.D.38 Copy of Form 'B' Register Ex.D.39 Copy of Katha Registration notice dtd. 18.12.2013 Ex.D.40 Copies of Tax paid receipts Ex.D.41 Copy of the Final decree in OS NO.8415/1996 Ex.D.42 Copies of 5 RTC Ex.D.43 Copy of the Encumbrance Certificate Ex.D.44-46 Certified copy of Form 'A' under RTI Act with IPO counter files Ex.D.47-49 Endorsements issued by BBMP Ex.D.50 Certified copy of the written statement in OS No.8415/1996 114 OS No.25133, 25134 & 25137/2007 Ex.D.51 Certified copy of the deposition of RW.1 in OS No.8415/1996 Ex.D.52 Certified copy of the deposition of PW. 1In OS No.8415/1996

6. List of documents exhibited for Court Commissioner Ex.C.1 Certified copy of the commission warrant Ex.C.2 Certified copy of the notice Ex.C.3 Certified copy of the Memo of Instructions of plaintiff Ex.C.4 Certified copy of the Memo of instructions of defendants Ex.C.5 Certified copy of the spot mahazar drawn Ex.C.6 Certified copy of the Report Ex.C.7-8 Certified copy of the Photos Ex.C.9 Certified copy of the Video DVD Ex.C.10 Certified copy of the DVD and Photo 115 OS No.25133, 25134 & 25137/2007 Ex.C.11 Certified copy of the bill issued by Preethi Video Vision Ex.C.12 Certified copy of the objection filed by the plaintiff.

(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru 116 OS No.25133, 25134 & 25137/2007 Vide Notification No.DJA.I/550/1993 dtd. 17.03.2022 issued by the High Court of Karnataka, Bengaluru on account of Holi, holiday was declared on 18.03.2022 and hence, case is called today i.e., 19.03.2022.

117

OS No.25133, 25134 & 25137/2007 (Common judgment pronounced vide separate common judgment) ORDER Suits filed by the Plaintiffs in OS No.25133/2007 and OS No.25134/2007 are hereby dismissed with costs.

Suit filed by the Plaintiff in OS No.25137/2007 is hereby decreed with costs. The Defendants in OS No.25137/2007 and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suit at their cost within a period of three months and hand over vacant possession of the same to the plaintiff.

In default, it is ordered that the plaintiff shall be at liberty to execute this decree and remove the encroachments on the suit schedule site and take possession of the same through court process and recover the cost from the defendants. 118

OS No.25133, 25134 & 25137/2007 Further, plaintiff in OS No.25137/2007 is granted a consequential Decree of permanent injunction thereby restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule site.

Keep original of this Judgment in OS No.25133/2007 and copies thereof in OS No.25134/2007 and OS No.137/2007.

Draw decree accordingly.

(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru