Bangalore District Court
) Sri D.H. Krishnasa vs ) Sri. D.H. Maruthisa on 4 November, 2015
(C.R.P. 67) Govt. Of Karnataka
Form No.9
(Civil)
Title sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY
(CCH.NO.12)
PRESENT : SRI MANJUNATH NAYAK,
B.A.L.,LL.B.,
XVI ADDL. CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY.
DATED: 04th NOVEMBER 2015
ORIGINAL SUIT NO. 494/2011
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PLAINTIFFS: 1) Sri D.H. Krishnasa, Aged 72 years,
S/o Late D.H. Hanumanthasa,
Residing at No.5, 5th cross,
A.M. Lane, Chickpet,
Opp: Ramdasa Asharam,
Bangalore-560 053.
2) Sri. D.H. Narayanasa,
Aged 53 years,
S/o Late D.H. Hanumanthasa,
Residing at No.14/ 14/1 & 14/2,
Sheshadri Road,
Bangalore 560 009.
(By Sri H.S. Somnath and
Associates, Advocates)
V/s-
2 O.S.No.494/2011
DEFENDANTS: 1) Sri. D.H. Maruthisa, Aged 74 years,
S/o Late D.H.Hanumanthasa,
Residing at No.3791,
"Maruthi Nilaya"
12th Main Road, Banashankari 2nd
stage, Bangalore 560 070.
2) Sri D.H.Navanathsa, Aged 60 years
S/o Late D.H. Hanumanthasa,
Residing at No.11/87,
1st main road, 2nd stage,
Okalipuram, Bangalore 560 021.
3) Sri. M.K. Ramachandra Guptha,
Aged 68 years,
S/o Late M.S. Krishnaiah Shetty,
R/a No.179, R.V. Road,
V.V. Puram, Bangalore 560 004.
4) Sri Somashekar Shastry
(Hari Om Swamiji),
Aged 37 years,
S/o Sri Sheshappa,
C/o Shree Lalitha Kamashi Temple,
No.4224, Muthyalapeta,
Mulbagal Taluk, Kolar District.
5) The Commissioner,
Bruhath Bangalore Mahanagara
Palike, N.R. Square,
Bangalore.
6) The Assistant Revenue Officer,
Jayanagar Division, Bangalore
Mahanagara Palike, Bangalore.
(Sri GKM Associates for Deft No.1
and 2, Sri C.H.Ramesh, Advocate
for Deft No.3, Sri Arvind Reddy.H.
Advocate for Deft No.4 and
Deft No.5 and 6 Placed exparte)
****
3 O.S.No.494/2011
Date of institution of the suit : 17-01-2011.
Nature of the suit Declaration & Injunction
Date of the commencement of 24-07-2012.
recording of the evidence:
Date on which the Judgment 04-11-2015.
was pronounced
Total duration Year Month Days
04 09 17
******
JUDGMENT
This suit is filed claiming the decree to declare the plaintiffs as absolute owners of ¼th share each in the suit schedule properties, along with defendants No.1 and 2 and to further declare that the gift deed dated 16-02-2005 and Rectification deed dated 08-03-2007 are null and void and not binding on plaintiffs and for mandatory injunction directing defendants No.5 and 6 to cancel the entries made in favour of defendant No.4 in respect of the suit schedule properties and for permanent injunction restraining defendants No.3 and 4 from alienating or creating encumbrance over the suit properties and interfering with plaintiffs' possession and enjoyment of the suit properties.
2. The case of plaintiffs, as made out in the plaint, is as follows:
4 O.S.No.494/2011
The suit property described in the plaint as 'A' schedule property is the property measuring 30 x 45 Ft., bearing site No.27A in Sy.No.17/1B and 'B' schedule property is the property measuring 30 x 45 Ft., bearing site No.22A in Sy.No.17/1B, situated at Chinnayanapalya, Lakkasandra Extension, Bangalore. The plaintiffs are the joint co-owners of the suit schedule property, along with defendants No.1 and 2. The suit 'A' schedule property was purchased by the father of plaintiffs and defendant No.1 and 2 by name D.H. Hanumanthasa, vide sale deed dated: 30-07-1964. The suit 'B' schedule property was purchased by the plaintiffs' father D.H. Hanumanthasa vide sale deed dated: 21-01-1963. Subsequently, both 'A' and 'B' schedule properties were allotted to D.H.Hanumanthasa by then CITB and present Bangalore Development Authority. The then CITB has confirmed ownership and title of plaintiffs' father and issued possession certificate on 22-08-1972 in respect of the suit schedule property. The plaintiff's father has also paid the amount for allotment of the suit schedule property and was enjoying the suit property as the absolute owner. The plaintiff's father D.H.Hanumanthasa, during his lifetime, has executed a will dated 08-12-1989 bequeathing the suit 'A' and 'B' schedule 5 O.S.No.494/2011 properties in favour of plaintiffs and defendants No.1 and 2. On the basis of the said will, plaintiffs and defendants No.1 and 2 entitled for 1/4th share each in the suit schedule property. Said D.H. Hanumanthasa died on 25-12-1990. Thereafter, dispute arose between the family members and legal heirs of D.H. Hanumanthasa, which made the plaintiff No.1 to file a suit in O.S.No. 6282/1991 claiming the decree for partition. The XXII Addl. City Civil Court, Bangalore, vide judgment dated 01-09- 2009, has confirmed the will dated 08-12-1989 and decreed the suit by awarding 1/4th share each to plaintiffs No.1 and 2 and defendants No.1 and 2. The plaintiffs requested defendant No.5 to change the Khatha of the suit property in their favour on the basis of the decree. The defendants No.1 and 2 have opposed for change Khatha in favour of plaintiff No.1. The defendants No.1 and 2, by colluding with defendant No.3 and 4, have made fraudulent claim over the suit schedule property. The defendant No.3, by claiming to be power of attorney holder of D.H. Hanumanthasa, has executed a registered gift deed dated 16- 02-2005. The defendant No.4, who claims to be self styled Hari Om Swamiji, is making illegal, unlawful and fraudulent claim over the suit schedule properties. The defendant No.3 also 6 O.S.No.494/2011 executed rectification deed dated: 08-03-2007 in favour of defendant No.4. Those documents were executed during the pendency of the suit in O.S.No. 6282/1991. The alleged gift deed and rectification deed were executed about 15 and 17 years after the death of D.H. Hanumanthasa, by falsely claiming that defendant No.3 is his power of attorney holder. The defendant No.5 and 6, in spite of objections made by plaintiffs, trying to change Khatha in the name of defendant No.4, on the basis of the fraudulent gift deed. The defendant No.4 is making illegal and unlawful attempt to build a temple in the suit schedule property. The plaintiffs are under the imminent and serious threat of dispossession from the suit schedule properties. If defendants are not prevented from their illegal acts, plaintiffs would be put to irreparable loss and injury. On all these grounds, plaintiffs claimed a decree for declaration, mandatory injunction and permanent injunction in the above terms.
3. In response to the summons issued by this Court, defendants No.1 to 4 appeared before this court through their respective counsels, whereas defendant No.5 and 6 failed to appear before the court and placed exparte. The defendants No.1 and 2 filed written statement separately and contended 7 O.S.No.494/2011 that the suit is false, frivolous and not maintainable in law or on facts. The defendants No.1 and 2 admitted the relationship between them and also the suit filed in O.S.No.6882/1991. The defendants No.1 and 2 denied other plaint averments. According to defendants No.1 and 2, they are sons of late D.H.Hanumanthasa. During the lifetime of D.H.Hanumanthasa, suit 'A' and 'B' schedule properties were acquired by him. Late D.H.Hanumanthasa has executed the will dated 08-12-1989. Subsequently, he has revoked the said will and executed a separate will dated 07-09-1990. On the basis of the said will, plaintiff No.2 and defendants No.1 and 2 have got 1/3rd share over the suit schedule properties. On these grounds, defendants No.1 and 2 prayed to dispose off the matter in accordance with law.
4. The defendants No.3 and 4, in their separate written statement, have contended that the suit is not maintainable in law or on facts. There is no cause of action to file this suit. The suit is barred by limitation and also bad for non-joinder of necessary parties. These defendants have denied other plaint averments. According to defendants, defendant No.4 is the sole and absolute owner and in physical possession and enjoyment of 8 O.S.No.494/2011 the suit schedule property. The suit properties were gifted in favour of defendant No.4 for construction of a temple and Ashram. The suit schedule properties were purchased by the plaintiff's father D.H. Hanumanthasa and he was in possession and enjoyment of the suit schedule property as the absolute owner. In order to meet his legal and family necessity, said D.H.Hanumanthasa sold the suit schedule property in favour of father of defendant No.3 for Rs.28,000/- and executed sale agreement dated 01-09-1972 and received the sale consideration of Rs.5,000/-. On 13-02-1976, said D.H. Hanumanthasa has executed irrevocable GPA in favour of defendant No.3 and handed over possession of the suit schedule property in favour of defendant No.3. The defendant No.3 has derived absolute right, title and interest over the suit property, on the basis of the sale agreement and GPA and he has put up compound wall and constructed sheet house. The defendant No.3 has gifted suit property in favour of defendant No.4 vide gift deed dated: 16-02-2005. When defendant No.4 tried to put up temple and Ashram in the suit schedule property, neighbors tried to interfere with the said work. Thereafter, defendant No.3 has executed a registered rectification deed dated 08-03-2007. 9 O.S.No.494/2011 The plaintiffs, having failed to succeed in their illegal attempts, filed this false suit, by colluding with defendants No. 1 and 2. The defendant No.4 is the absolute owner of the suit schedule property. The defendant No.4 has obtained the sanction plan and licence for construction of a temple and Ashram in the suit schedule property. The plaintiffs and defendants No.1 and 2 have no right over the suit schedule properties. On these grounds, defendants No.3 and 4 prayed for dismissal of the suit with costs.
5. On the basis of the above pleadings of both the parties, following issues were framed:
1. Whether the Plaintiffs prove that they are the absolute owners of 1/4th share each in the suit 'A' and 'B' schedule properties along with defendant No.1 and 2?
2. Whether the plaintiffs prove that registered gift deed dated: 16.2.2005, rectification deed dated: 8.3.2007 rd executed by 3 defendant as a power of attorney holder of Sri D.H. Hanumanthasa in favour of 4th defendant as null and void and not binding on the plaintiffs over the suit 'A' and 'B' schedule properties?
3. Whether the defendant No.1 and 2 prove that during the lifetime of Hanumanthasa, acquired suit 'A' and 'B' schedule properties, executed will dated 8.12.1989 and subsequently revoked the will dated: 8.12.1989, executed another 10 O.S.No.494/2011 will dated: 7.9.1990 and as per his will, 2nd plaintiff and 1st and 2nd defendant have got 1/3rd share each in a suit 'A' and 'B' schedule properties?
4. Whether 3rd defendant proves that the suit is barred by limitation?
5. Whether the suit is suffering from mis-
joinder of parties and not paid the sufficient court fee?
6. Whether the plaintiffs are entitled for the reliefs of declaration, mandatory and permanent injunctions?
7. To what order or decree?
ADDITIONAL ISSUES
1. Whether the 4th defendant proves that the 4th defendant is the absolute owner and in peaceful possession and enjoyment of the residential property bearing New No.17/1 (Old No.3/1) measuring East to West 30 feet and North to South 90 feet in all 2700 Sq. Ft.
as described in the written statement schedule property?
2. Whether the 4th defendant proves that the written statement schedule property bearing site Nos 22/A and 27/A carved out of Sy.No.17/1B each measuring 30 x 45 feet owned and possessed by Sri Kabadi Vittalsa as per registered sale deed dated: 21.7.1949?
3. Whether the 4th defendant proves that children of Kabadi Vittalsa alienated site bearing No.22/A in favour of Smt. Rajalakshmi Ammal under registered sale deed dated 23.5.1962?
11 O.S.No.494/2011
4. Whether the 4th defendant proves that site No.27/A purchased by D.H. Hanumanthasa under sale deed dated 21.1.1963 and further purchased site No.22/A by D.H. Hanumanthasa from erstwhile owner under sale deed dated:
30.7.1964 and regular sale deed dated 28.9.1964?
5. Whether the 4th defendant proves that Sri D.H. Hanumanthasa paid development layout charges to the CITB Rs.4,500/-?
6. Whether the 4th defendant proves that the 3rd defendant was put in possession of written statement schedule property by virtue of agreement of sale and under GPA thereafter 3rd defendant gifted the written statement schedule property in favour of the 4th defendant as well as under rectification deed?
6. To prove the above issues and to substantiate their contentions, plaintiff No.2 examined before this Court as PW.1 and got marked Exs.P.1 to 18 documents. The defendant No.4 is examined before this court as DW-1 and got marked Exs.D.1 to 81 documents.
7. I have heard the arguments of both the parties.
8. By considering the pleadings, oral and documentary evidence of both the parties and also the arguments canvassed by them, I answer the above issues in the following, because of my below-discussed reasons: 12 O.S.No.494/2011
ISSUE NO.1 : IN THE AFFIRMATIVE.
ISSUE NO.2 : IN THE AFFIRMATIVE.
ISSUE NO.3 : IN THE NEGATIVE.
ISSUE NO.4 : IN THE NEGATIVE.
ISSUE NO.5 : IN THE NEGATIVE.
ISSUE NO.6 : IN THE AFFIRMATIVE.
ADDL.ISSUE NO.1 : IN THE NEGATIVE.
ADDL.ISSUE NO.2 : IN THE AFFIRMATIVE.
ADDL.ISSUE NO.3 : IN THE AFFIRMATIVE.
ADDL.ISSUE NO.4 : IN THE AFFIRMATIVE.
ADDL.ISSUE NO.5 : IN THE AFFIRMATIVE.
ADDL.ISSUE NO.6 : IN THE NEGATIVE.
ISSUE NO.7 : AS PER FINAL ORDER.
REASONS
ISSUE No.1 & 2 AND ADDITIONAL ISSUE No.1 & 6:-
9. To avoid repetition of my discussion on facts, I have taken these issues together for determination. The plaintiff No.2, who was examined before this court as PW.1, has reiterated the plaint averments in his examination in chief affidavit and deposed about their father D.H. Hanumanthasa acquiring title and ownership over the suit schedule properties by virtue of the sale deeds dated: 30-07-1963 and 21-01-1963.
PW.1 further deposed that the title of their father over the suit schedule property was confirmed by then CITB by issuing 13 O.S.No.494/2011 possession certificate. PW.1 further deposed about their father D.H. Hanumanthasa executing a registered will dated 08-12- 1989 by bequeathing the suit schedule properties in their favour. PW-1 further deposed about death of their father on 25-12-1990 and subsequently, plaintiff No.1 filed suit in O.S.No. 6882/1991. PW-1 further deposed that the said suit was decreed by allotting 1/4th share each to them and defendants No.1 and 2 over the suit properties. PW-1 further deposed about defendants No.1 and 2, by colluding with defendant No.3 and 4, delivering the original documents to them and there after, defendant No.3 executing the registered gift deed and rectification deed on the basis of power of attorney in favour of the defendant No.4. PW.1 further deposed that the said gift deed and rectification deed were executed about 15 and 17 years after the death of their father. PW.1 further deposed that on the basis of the said gift deed, defendant No.4 trying to construct a building in the suit schedule property and obstructing their possession and enjoyment of the suit schedule property.
10. The plaintiffs produced certified copies of the sale deed executed in favour of their father as per Ex.P-1 and Ex.P-2. The tax paid receipts were marked as Ex.P3 to Ex.P10. The 14 O.S.No.494/2011 death certificate of plaintiff's father is marked as per Exs.P-11. The judgment and decree relating to O.S.No.6882/1991 were marked as per Ex.P-12 and 13. A letter is marked as per Ex.P-
14. The Khatha extract is marked as per Ex.P15. The rectification deed is marked as per Ex.P16. The encumbrance certificate is marked as per Ex.P17. The will is marked as per Ex.P18.
11. The defendant No.4 is examined before this court as DW.1 and he deposed that father of the plaintiffs D.H.Hanumanthasa has executed the sale agreement in favour of father of defendant No.3 by agreeing to sell the suit schedule property and in pursuance to the same, he has also executed GPA dated: 13-02-1976 in favour of defendant No.3. DW-1 further deposed that on the basis of the said power of attorney defendant No.3 has executed gift deed dated 16-02-2005 and also rectification deed dated 08-03-2007. DW-1 further deposed that on the basis of gift deed and rectification deed, he became absolute owner of the suit schedule properties. DW-1 further deposed that in order to construct the temple and Ashram in the suit property, he obtained the licence and approved plan from the BBMP and plaintiffs causing unnecessary obstruction for the 15 O.S.No.494/2011 same. DW-1 further deposed about he lodging complaint before the Wilson Garden Police.
12. The defendants have produced the partition deed as per Ex.D-1. The sale deeds are marked as Ex.D-2 and D-3. The letter issued by the CITB is marked as per Ex.D-4. The original challan is marked as per Ex.D-5. The memo issued to the plaintiff's father were marked as per Ex.D-6 and D-7. The demand notice were marked as per Ex.D-8 and 9. Ex.D-10 & 11 are the written statement of defendants filed in O.S.No.6882/1991. The plaint copy of the O.S.No. 6882/1991 is marked as per Ex.D-12. The original gift deed dated 16-02- 2005 is marked as Ex.D-13. The original rectification deed is marked as per Ex.D-14. The Encumbrance certificate were marked as per Ex.D-15 to 23. The Khatha certificates were marked as per Ex.D-24 to 28. The notice issued by the BBMP is marked as Ex.D-29. The Khatha extracts were marked as Ex.D- 30 to 32. The original sale agreement dated: 01-09-1972 is marked a per Ex.D-33. The GPA dated: 13-02-1976 is marked as Ex.D-34. The original sale deed dated: 23-05-1962 is marked as Ex.D-35. The tax paid receipts marked as per Ex.D-36 to 40. The attendance register extract is marked as Ex.D-41. The bill 16 O.S.No.494/2011 issued by GK Enterprises is marked as per Ex.D-42. The written statement filed in O.S.No.6882/1991 were marked as per Ex.D- 43 and 44. The approved plan obtained by Defendant No.4 is marked as per Ex.D-45. The tax paid receipts were marked as per Ex.D-46 to 66. The copy of the Police complaint is marked as per Ex.D-67 and 68. The electricity bill paid receipts were marked as Ex.D-69 to 72. The photos with CD were marked as Ex.D-73 to 80. The public notice issued in the news paper dated 18-12-2010 is marked as per Ex.D-81.
13. Before proceeding to discuss the disputed questions involved in this suit, let me state some of the admitted and undisputed facts. There is no dispute regarding the relationship between the plaintiff No.1 and 2 and defendants No.1 and 2. The plaintiff No.1 and 2 and defendant No.1 and 2 are the sons of D.H. Hanumanthasa. There is also no dispute that the suit schedule properties were purchased by the father of plaintiffs and defendants No.1 and 2, D.H. Hanumanthasa vide sale deed dated: 30-07-1964 and 21-01-1963. The defendants have produced copy and original sale deeds before this court as per Ex.D-2 and Ex.D-3. It is also undisputed fact that the title of plaintiffs over the suit schedule property was confirmed by the 17 O.S.No.494/2011 then CITB by issuing possession certificate. It is also undisputed fact that father of plaintiffs Hanumanthasa has paid the development charges regarding confirmation of title and allotment of the suit properties in his favour. The plaintiffs claim that their father D.H.Hanumanthasa has executed a will dated:
18-12-1989 bequeathing the suit property in favour of plaintiffs and defendant No.1 and 2 and on the basis of the will, they got 1/4th share each over the suit schedule property. The plaintiffs also contended that the said will was confirmed and 1/4th share each was allotted to them by way of judgment passed in O.S.No.6882/1991. The copy of the said judgment is produced before this court as per Ex.P.12.
14. The defendant No.1 and 2 dispute said claim of the plaintiffs by asserting that their father has cancelled the said will and executed another will dated 07-09-1990, on the basis of which, only the plaintiff No.2 and defendant No.1 and 2 are having 1/3rd share each over the suit property. I will consider this dispute while discussing on issue No.3.
15. The defendants No.3 and 4 claim that father of the plaintiffs D.H.Hanumanthasa has agreed to sell the suit property to the father of defendant No.3 and executed a sale agreement 18 O.S.No.494/2011 on 01-09-1972 by agreeing to sell suit property for Rs.28,000/- and subsequently, in pursuance to the said sale agreement, he has executed a General Power of Attorney (in short GPA) in favour of defendant No.3 on 13-02-1976. According to defendants No.3 and 4, on the basis of the said GPA defendant No.3 has executed a registered gift deed dated: 16-02-2005 and rectification deed dated: 08-03-2007, in favour of defendant No.4, on the basis of which, defendant No.4 became absolute owner of the suit schedule property. The plaintiffs have seriously disputed the legality, execution and genuineness of the sale agreement dated: 01-09-1972 and GPA dated:13.2.1976.
16. In view of the admitted facts regarding the plaintiffs father D.H. Hanumanthasa owning the suit schedule property and also admitted fact regarding relationship between plaintiffs and defendant No.1 and 2 and also in view of the judgment and decree passed in O.S.No.6882/1991, initial burden placed upon plaintiff's stand discharged. Because plaintiffs No.1 and 2 and defendants No.1 and 2, being sons of late D.H. Hanumanthasa will acquire the suit schedule property after his death. Accordingly, there is a decree in favour of these plaintiffs by allotting 1/4th share over the suit schedule properties. The 19 O.S.No.494/2011 documents produced by both the parties, coupled with the admitted and undisputed facts and also judgment and decree of O.S.No.6882/1991, would prove the plaintiffs and defendant No.1 and 2 having equal share over the suit schedule property.
17. Now the onus would shift upon defendant No.3 and 4 to prove and substantiate their claim about D.H. Hanumanthasa executing sale agreement in favour of father of defendant No.3 and subsequently, executing a GPA in favour of defendant No.3 and on the basis of which, defendant No.3 executing the gift deed dated 16-02-2005 and rectification deed dated: 08-03- 2007. The defendant No.4 was examined before this court as DW-1 and during the course of his evidence, defendant No.4 has produced the sale agreement dated 01-09-1972 as per Ex.D-33 and power of attorney dated: 13-02-1976 as per Ex.D-34. The defendant No.4 also produced original gift deed and rectification deed executed in his favour as per Ex.D-13 and Ex.D-14 respectively. Now the disputed question involved in this suit is as about D.H.Hanumanthasa executing sale agreement in favour of father of defendant No.3 and GPA in favour of defendant No.3. If defendant No.3 and 4 able to prove the due execution of these two documents, next question which has to be considered by 20 O.S.No.494/2011 this court is as to whether on the basis of these two documents, whether the title over the suit property has been transferred in favour of defendant No.3. Then this court has to considered as to whether the gift deed and rectification deed produced as per Ex.D13 and 14, executed by the defendant No.3, in favour of defendant No.4, on the basis of the GPA were genuine and legally valid documents so as to confer absolute title in favour of defendant No.4.
18. The defendant No.4, apart from examining him as DW-1 and producing sale agreement as per Ex.D-33 and GPA as per Ex.D-34, has not let in any other evidence to prove the execution of these documents. The learned counsel for plaintiffs, in support of his arguments on this point, has relied upon the decision reported in AIR 1971 SUPREME COURT 1865 (Sait Tarajee Khimchand and others V/s. Yelamarti Satyam and others), wherein it was held that, mere marking of the document as an exhibit does not dispense with its proof. In this case, defendant No.4, apart from marking sale agreement, GPA, gift deed and rectification deed, no other evidence has been let in to prove the execution, genuineness and legality of those 21 O.S.No.494/2011 documents, though all these documents were signed by the attesting witnesses.
19. Of course, defendant No.4 has produced the original title deeds and other original documents relating to the suit schedule property, which were executed in favour of late D.H. Hanumanthasa. On the basis of production of all those original documents by him, defendant No.4 tried to impress upon this court that, at the time of executing the sale agreement and GPA, D.H. Hanumanthasa has handed over those original documents to defendant No.3 and accordingly, those documents were handed over to them at the time of executing the gift deed. Hence, execution of the sale agreement and GPA has to be accepted by this Court. So far as defendant No.4 having the custody of original documents and original title deeds with him, plaintiffs alleged that it was handed over to him by defendant No.1 and 2, because of the collusion between them and also because of the enmity between plaintiffs and defendant No.1 and
2.
20. Even though plaintiffs No.1 and 2 and defendant No.1 and 2 were brothers and they are sons of Hanumanthasa, there was dispute between them, which leads plaintiffs filing the 22 O.S.No.494/2011 suit for partition in O.S.No. 6882/1991. Said suit was decreed by allotting plaintiffs and defendant No.1 and 2, 1/4th share each over the suit schedule property. The filing of the suit by the plaintiff No.1 against plaintiff No.2 and defendant No.1 and 2 itself indicate that though they are brothers, there is no cordiality between them. Even in this suit, defendant No.1 and 2 have taken contrary stand by denying the right and share of plaintiff No.1 over the suit schedule property, by contending that their father executed another will dated: 07-09-1990, on the basis of which only plaintiff No.2 and defendant No.1 and 2 have got 1/3 share and plaintiff No.1 has no share over the suit schedule property. This assertion made by defendant No.1 and 2, coupled with plaintiff No.1 filing the suit and obtaining the decree goes to show that there is no cordiality between plaintiffs and defendant No.1 and 2. It is pertinent to note here that defendant No.1 is the eldest son of D.H. Hanumanthasa. Therefore, he possessing the original documents of the suit property can be accepted. Accordingly, this court can also accept plaintiff's version about defendant No.1 handing over original documents to defendant No.3 and 4. There is no evidence before this court to show the defendant No.3 and 4 23 O.S.No.494/2011 doing any acts on the basis of those original documents with them, except producing those documents in this suit. If all those documents were with them since from the year 1972, defendant No.3 and from 2005 defendant No.4 would have done some thing in all these years. Hence, merely on the basis of the defendant No.4 producing original title deeds before this court, this court cannot accept the version of defendant No.3 and 4 regarding the execution of the Ex.D-33 sale agreement and Ex.D-34 GPA. Rather, for their success in this suit and in their defence, defendant No.3 and 4 have to independently prove the actual execution of both those documents by late D.H.Hanumanthasa.
21. There are witnesses, who have signed both the sale agreements and power of attorney. The defendant No.4 has not made any attempts to examine those witnesses to prove the actual execution of Ex.D-33 sale agreement and Ex.D-34 GPA. The defendant No.3 and 4 failed to offer any explanation for non-examination of any witnesses to prove actual execution of those documents. If both those documents were genuine documents and D.H.Hanumanthasa has executed those documents, nothing prevented defendant No.3 and 4 from 24 O.S.No.494/2011 examining any of the witnesses, who have signed both those documents. So, by not examining witnesses, defendant No.4 has failed to prove the actual execution of both the sale agreement and GPA by D.H.Hanumanthasa in favour of defendant No.3 and his father. As held by the Hon'ble Supreme Court, in the above referred decision, when the execution of the document is seriously disputed, mere production and marking of documents, would not dispense with its proof.
22. In fact, star witness, who would have been examined before this court, to prove the execution, legality and genuineness of both these documents would be defendant No.3 himself, because it is in favour of his father the sale agreement was executed and in his favour GPA was executed. It is the defendant No.3, who has executed gift deed and rectification deed in favour of defendant No.4. Therefore, defendant No.3 would have been a material and star witness in this case. Though defendnatNo.3 has appeared before this court through a separate counsel and filed written statement independently, he has not entered in to the witness box to substantiate his defence and to prove genuineness, legality and execution of those documents. Even defendant No.4 has not made any attempt to 25 O.S.No.494/2011 summon and examine defendant No.3, since the documents like gift deed and rectification deeds were executed by defendant No.3 in his favor and those documents and GPA and sale agreement were seriously disputed by plaintiffs. According to me, non-examination of defendant No.3 is fatal and huge set back to the case of defendant No.3 and 4.
23. In fact because of non examination of defendant No.3 and his non entry in to the witness box, plaintiffs have lost a valuable right of cross examining him and substantiate their claim. According to me, for this reasons an adverse inference has to be drawn against defendant No.3 and 4, as held by the Hon'ble Supreme Court, in the decision reported in AIR 1999 SUPREME COURT 1441 (Vidyadhar V/s. Manik Rao). By interpreting illustration (G) to section 114 of the Evidence Act, it was held by the Hon'ble Supreme Court in the above decision that, when the defendant has not entered in to the witness box and failed to substantiate his defence and failed to offer him for the test of cross examination, an adverse inference has to be drawn against the defendant. In this case, defendant No.3, by entering into the witness box, not only failed to substantiate their defence, but also failed to offer him for the test of cross 26 O.S.No.494/2011 examination and thereby plaintiffs lost a valuable right of cross examining the defendants. Hence adverse inference has to be drawn both against defendant No.3 and 4 for non entry of defendant No.3 in to the witness box.
24. It is pertinent to note here that even though both of the sale agreement and GPA were of the year 1972 and 1976, they were not at all acted upon in any manner till the year 2005, when gift deed dated 16-02-2005 was executed. Neither defendant No.3 nor defendant No.4 offered any explanation for not doing any act on the basis of the sale agreement and GPA from the year 1972 and 1976 till the year 2005. If both these documents were genuine documents, defendant No.3 would have acted upon those documents in all these years. Even though defendant No.3 claims that the power of attorney was executed in his favour during the year 1976, he has done nothing on the basis of the said power of attorney, till the year 2005, when he executed the gift deed in favour of defendant No.3. It appears both these documents have not seen the light of the sun till the year 2005. The defendant No.3 and his father failing to act upon GPA and sale agreement in all these 3 27 O.S.No.494/2011 decades would also creates some doubt in the mind of this court regarding genuineness of those documents.
25. It is well established principle of law that the sale agreement would not create any right over the properties agreed to be sold in favour of the intending purchaser. Only right, which is created on the basis of the sale agreement, is right to obtain the specific performance. Apart from that no right is created on the basis of the sale agreement. If the possession is delivered on the basis of the sale agreement, as a part performance of contract, then the intending purchaser has a right to protect his possession as against the illegal dispossession. In this particular case, as per Ex.D33 sale agreement, possession was not at all delivered in favour of father of defendant No.3. It is specifically stated in the Ex.D3 sale agreement, that actual possession of the property would be delivered on the date of execution of the sale deed, which clearly indicate that in pursuance to the sale agreement and as a part performance of the contract, possession of the suit property was not delivered in favour of father of defendant No.3.
26. When there is a sale agreement in favour of father of defendant No.3, course open for him to demand specific 28 O.S.No.494/2011 performance and execution of the sale deed from D.H.Hanumanthasa. If the sale deed was not executed, to file a suit for specific performance. In this particular case, neither father of defendant No.3 nor defendant No.3 have tried to act upon the sale agreement and demanded the execution of sale deed from the father of the plaintiff D.H. Hanumantthasa. No suits were filed claiming the decree for specific performance till this day, even though the sale agreement were of the year 1972. Absolutely no explanation is forthcoming from defendant No.3 for not demanding the execution of the sale deed from the plaintiff's father in all these years. This conduct of defendant No.3 and his father also creates doubt in the mind of this court regarding the genuineness, legality and execution of these two documents. Considering all these aspects, I have to say that defendant No.3 and 4 have miserably failed to prove the execution of Ex.D-33 sale agreement and Ex.D-34 GPA by DH Hanumanthasa.
27. The defendant No.4 tried to take shelter under Sec.90 of the Indian Evidence Act, to prove the due execution of both these documents. According to defendant No.4, since both these documents were 30 years old documents, its execution 29 O.S.No.494/2011 has to be presumed by this court. In support of this argument, learned counsel for defendant No.4 has relied upon the decisions reported in AIR 1955 Rajasthan 179 (Poonamchand V/s. Motilal and others) AIR 1993 PATNA 129 (Haradhan Mahatha and others V/s Dukhu Mahatha) AIR 1961 Madras 262 (Dhanpal Chettiyar and others V/s. Govindaraja Chetty and others, AIR 2001 Gujarath 37 (Mohmedbhai Rasulbhai Malek and others V/s. Amirbhai Rahimbhai Malik and ALT 1992(1) 340 (Pujari Changal Reddy V/s. M. Santha Kumari). The principles laid down in the above decision is relating to extending the benefit of presumption as to the documents, which were 30 years old.
28. On the other hand, learned counsel for the plaintiff relied upon a decision reported in 2005(9) SCC 359 (Gangamma and others V/s. Shivalingaiah) wherein it was held that presumption under section 90 of Evidence Act extends merely to the extent of the authenticity of 30 years old document and it does not extent to recitals contained in any document. It was further held in the said decision that even if a formal execution of the document is proved, it cannot lead to presumption that recitals 30 O.S.No.494/2011 contained in the said documents are also correct. Therefore, it is open to the parties to raise plea contrary thereof.
29. With great respect to the ratio laid down in all these decisions relied upon by the defendant No.4, he had no benefit of those decision and also section 90 of the Evidence Act, considering the facts and circumstances of this case and also because of the evidence adduced by the defendant No4 before this court. I have already pointed out some of the doubting and suspicious circumstances, which creates doubt in the mind of this court regarding the execution, genuineness and legality of those documents. Both those documents are unregistered instruments. Even though the defendant No.4 has produced originals before this court and they are 30 years old documents, drawing presumption under Sec.90 of the Evidence Act is not mandatory. Rather, it is judicial discretion of this court. The important circumstances like those documents being un registered and they were never acted upon in any manner in all these 30 years, and not seen light of the sun in all these years, come in the way of this court in extending the benefit of presumption under Sec.90 of Indian Evidence Act. Hence , I hold 31 O.S.No.494/2011 that it is not a fit case to draw the presumption in respect of those documents, its execution and genuineness. In view of above referred decision of the Hon'ble Supreme Court, which was relied upon by the plaintiffs, defendant No.4 cannot urge that merely on production of sale agreement and GPA, this court has to presume its execution and also the recitals of the said documents. Thereby I hold that defendant No.3 and 4 have failed to prove the due execution of Ex.D-33 sale agreement and Ex.D-34 power of attorney by D.H. Hanumanthasa.
30. Now, let me proceed with my discussion by assuming for a while that the execution of Ex.D-33 and Ex.D-34 were proved by defendants. The next question before this court is as to whether execution of the gift deed and rectification gift deed produced as per Ex.D-13 and 14, executed by the defendant No.3 in favour of defendant No.4, as the GPA holder of D.H.Hanumanthasa, cannot be held as legally valid one. By executing power of attorney DH Hanumanthasa has authorized defendant No.3 to deal with the suit property and thereby principal and agent relationship has been created between them. Any power of attorney executed by the principal would be valid till the death of the principal or till the revocation of the said 32 O.S.No.494/2011 power of attorney. Ex.P-11 is the death certificate of D.H. Hanumanthasa, which was not at all disputed by defendants. As per Ex.P-11 D.H.Hanumanthasa died on 25-12-1990. When D.H.Hanumanthasa died on 25-12-1990 the power of attorney executed by him would also automatically stand revoked or cancelled. Therefore, subsequent to 25-12-1990 defendant No.3 cannot use power of attorney and can not do any act. In this particular case, Ex.D-13 gift deed was executed on 16-02-2005 whereas Ex.D-14 rectification deed was executed on 08-03- 2007. On the date of execution of both the documents, D.H. Hanumanthasa was no more, as he died about 15 and 17 years before the execution of both documents. When the principal died, agency created by him on executing he GPA, would also die automatically. Hence, on the basis of power of attorney executed by D.H.Hanumanthasa, no document would have been executed by defendant No.3, after his death.
31. It is pertinent to note here that in both Ex.D-13 gift deed and Ex.D-14 rectification deed name of the executants is shown as D.H.Hanumanthasa and both these documents were executed in his name by the power of attorney holder who is none other than defendant No.3 in this suit. But the executant 33 O.S.No.494/2011 D.H.Hanumanthasa died about 15 and 17 years before the execution of Ex.D13 and 14. There by these documents would be the documents executed by dead person. According to me, no more evidence is required, other than this sole factor, to hold both these gift deed and rectification deed were in valid and non- est in the eyes of law. Hence on this score alone one has to hold that both Ex.D13 gift deed and Ex.D14 rectification deed are void documents and they are liable to be cancelled.
32. The defendant No.4 tried to impress upon this court that D.H. Hanumanthasa, by executing sale agreement and GPA has conveyed the suit property in favour of defendant No.3 and his father and on the basis of those documents, they became absolute owner. Hence, neither the plaintiffs not the defendant No.1 and 2 are having any right over the suit schedule property. As I said earlier, sale agreement would not convey title to the property to the vendor. It is only the registered sale deed or any other registered deed of conveyance like gift deed, release deed or relinquishment deed, which can transfer or convey the title of true owner. In this particular case, true owner of the suit property, D.H.Hanumanthasa has not executed any registered document like sale deed or gift deed, either in favour of 34 O.S.No.494/2011 defendant No.3 or in favour of his father, to convey his title and ownership over the suit schedule property. When there is no such registered instrument executed by the original owner D.H.Hanumanthasa, on the basis of the sale agreement and GPA, title over the suit property cannot be transferred, either in favour of defendant No3 or in favour of his father, by executing the sale agreement and GPA.
33. The learned counsel for defendant No.4, in support of his arguments, has relied upon decisions reported in 2012(1) SCC 656 (Suraj Lamp Industries Private Limited V/s. State of Haryana and others) and (2005)12 SCC 77 (State of Rajasthan and others V/s. Basant Nahata). Of course, as per the later decision, power of attorney is not compulsorily registerable instrument. This court is not discarding the Ex.D.34 power of attorney on the ground of non registration. But, this court doubting the execution of power of attorney, because defendants failing to prove the same and also because of the other suspicious circumstances as pointed out above. Moreover when the gift deed and rectification deeds were executed, the said power of attorney was not in force, as the principal in the 35 O.S.No.494/2011 power of attorney died about 15 and 17 years before the execution of the gift deed and rectification deed.
34. In fact, above referred full bench decision of the Hon'ble Supreme Court in Suraj Lamp Industries case, rather than helping the case of defendant No.3 and 4, would go heavily against them. The Hon'ble Supreme Court in the above decision, in harsh words, has condemned the tendency of selling the property, by executing the sale agreement and GPA. It was held by the Honble Supreme Court that immovable property can be transferred or conveyed only by deed of conveyance duly stamped and registered. The sale of property by way of sale agreement and GPA, in order to avoid the payment of stamp duty and registration fee, cannot be recognized. In view of ratio laid down in the above decision, contention of the defendant No.4 that his vendor i.e. defendant No.3 has got valid title and ownership over the suit property, on the basis of the sale agreement and GPA, cannot be accepted by this court.
35. Now, it is relevant to refer some of the statements given by defendant No.4, who was examined before this court as DW-1, during the course of cross examination. DW-1 has deposed that gift deed in his favour was executed by one 36 O.S.No.494/2011 Ramachandra Guptha (defendant No.3) and D.H.Hanumanthasa has not executed any such gift deed in his favour. But the gift deed relied upon defendant No.4, as per Ex.D.13 shows that property was gifted by D.H.Hanumanthasa through his power of attorney holder one Ramachandra Guptha. Admittedly D.H.Hanumanthasa was the owner of the suit property. If he has not executed any gift deed, defendant No.4 cannot acquire any right over the suit schedule property on the basis of the gift deed executed by Ramachandra Guptha. Hence on that score also, claim of defendant No.4 has to be rejected.
36. Other documents produced by defendant No.4 regarding change of Khatha, he paying the taxes and assessment in respect of the suit property, entry of his name in the municipal records, encumbrance certificate, he obtaining approved plan and licence for construction of building and electricity bills produced by him are all cannot be considered, when a valid title to the suit property itself has not been conveyed in his favour through a genuine and legally valid instrument.
37. To sum up by my discussion on all these issues, title of D.H.Hanumanthasa over the suit schedule property was 37 O.S.No.494/2011 admitted and undisputed. The plaintiffs and defendant No.1 and 2, being the sons of D.H.Hanumanthasa, would acquire the suit property upon his death and there is also a decree in their favor in holding that they got 1/4th share each over the suit schedule property. The defendant No.3 and 4 rely upon the sale agreement and GPA to show that D.H.Hanumanthasa has conveyed the suit property to them. The defendant No.3 and 4 failed to prove the execution of those documents. Those documents are also not appears to be genuine and legally valid one. Those documents were not at all acted upon in all these years, though they were of the year 1972 and 1976. More importantly, D.H.Hanumanthasa died during the year 1990 and the power of attorney executed by him also would die on his death. Therefore, the gift deed and rectification deed executed during the year 2005 and 2007, on the basis of the said power of attorney, also cannot be accepted by this court. The sale agreement provides that possession was not delivered by D.H.Hanumanthasa as a part performance of the contract. The possession of the suit property cannot be delivered on the basis of the general power of attorney. Therefore, actual and physical possession of the property was also not delivered to defendant 38 O.S.No.494/2011 No.3 and 4. Hence, I have to accept the plaintiff's version and hold that they are having joint right and share over the suit schedule property along with defendant No.1 and 2 and the gift deed dated: 16-02-2005 and rectification deed dated: 08-03- 2007 are null and void. At the same time, the contention of defendant No.4 that he became absolute owner of the suit schedule property and has been in possession and enjoyment of the same by virtue of the sale agreement, GPA and gift deed and rectification deed, also cannot be accepted. Accordingly, I answer issues No.1 and 2 in the affirmative and additional issue No.1 and 6 in the negative.
ADDL. ISSUE No.2 TO 5:-
38. These issues are relating to defendant No.4 proving that the suit properties were originally owned by Kabadi Vittalsa, Smt. Rajalakshmi Ammal and D.H.Hanumanthasa purchasing these properties and paying the development charges to CITB. In fact, absolutely there is no dispute about all these issues. The defendant No.4 has also proved the same by producing the documents. Any how, answer to these issues would not help defendant No.4, when he failed to prove that the title of the suit 39 O.S.No.494/2011 property was legally conveyed to him. Since there is no dispute about these issues, I answer these issues in the affirmative.
ISSUE No.3:-
39. This issue is regarding defendant No.1 and 2 proving that during the lifetime of D.H.Hanumanthasa, he executing the will dated: 08-12-1989 and subsequently, he revoking the will and thereafter executing another will dated: 07-09-1990. Though defendant No.1 and 2 have taken up these defence, they failed to prove the same by leading any evidence before this court. In fact, this issue is not at all necessary for the purpose of adjudication of the dispute projected in this suit, because there is already a judgment in O.S.No.6882/1991 by holding that plaintiffs and defendant No.1 and 2 are having 1/4 share each over the suit property. Though defendant No.1 and 2 contended that they have challenged the said judgment, they have not produced any documents before this court to prove the same. Moreover, the inter-se dispute between plaintiffs and defendant No.1 and 2 cannot be decided in this suit. Only the dispute between the plaintiffs and defendant No.1 and 2 on one side and defendant No.3 and 4 on the other side, has to be decided in this 40 O.S.No.494/2011 suit. If the defendant No.1 and 2 have got any grievance about the judgment passed in O.S.No.6882/1991 and 1/4th share allotted to the plaintiff No.1, they have to challenge the said judgment by filing the appeal and their claim can not be considered in this suit, when already there is judgment and decree of O.S.No.6882/1991.
40. In fact the learned counsel for defendant No.4 argued much about plaintiffs suppressing the factum of revocation of the will and execution of the separate will by their father and obtaining the decree in O.S.No.6882/1991. The defendant No.3 and 4 cannot contend about the same, because dispute regarding the will and extent of share is the dispute between the plaintiffs and defendant No.1 and 2. The defendant No.4 can not poke his nose in the inter se dispute between the plaintiffs and defendant No.1 and 2. Even if there is no will, as the legal hiers of D.H.Hanumanthasa, plaintiffs and defendant No.1 and 2 are having right and share over the suit property. Even if plaintiff No.1 has no right over the suit property, on the basis of the will dated 07-09-1990, still the plaintiff No.2 and defendant No.1 and 2 would be having share. Any how this dispute has been already decided in the separate suit and finding 41 O.S.No.494/2011 is already been given in this regard in O.S.No.6882/1991. Any how the defendant No.1 and 2 have not let in any evidence before this court and not proved this issue. Accordingly, I answer this issue in the Negative.
ISSUE No.4:-
41. This issue is regarding the suit being barred by limitation. Though the defendant No.3 has contended that the suit is barred by limitation, he failed to prove this issue by leading any evidence before this court. Since the relief claimed by the plaintiffs in this suit is relief of declaration and injunction, the period of limitation provided to file the suit is three years. According to the plaintiffs, cause of action for filing this suit arose during December 2010, when defendants made an attempt to lay foundation in the suit schedule property. Even though the gift deed and rectification deed have been executed during the year 2005 and 2007, plaintiffs were not the party to those documents and they were also not aware about the execution of those documents. Under such circumstances, this suit cannot be said as barred by limitation. Accordingly, I answer this issue in the negative.
ISSUE NO.5:-
42 O.S.No.494/2011
42. This issue is regarding the suit being bad for mis- joinder of parties and about the suit valuation and payment of court fee. So far as the mis-joinder of parties are concerned defendants failed to say, who is the un necessary party to this suit, to say that this suit is bad for mis-joinder of parties. Since there is dispute regarding change of Khatha, defendants No.5 and 6 were made as party to the suit. Therefore, this suit can not be said bad for mis-joinder of parties.
43. So far as the suit valuation and payment of court fee is concerned, plaintiffs have valued this suit on the basis of the market value of the suit property and shown market value as Rs.40,50,000/-. Since they claim the relief of declaration of their 1/4th share each over the suit property, they valued their share as Rs.10,12,500/- each and ½ of the their share is shown as Rs.5,02,250/- and paid court fee of Rs.33,275/- each. In total, both the plaintiffs paid court fee of Rs.66,750/-. There is no evidence to show that the value of the suit property is more than what has been shown by plaintiffs in the valuation slip. Hence, I have to say that the suit is properly valued and requisite court fee is paid. Accordingly, I answer this issue in the negative.
43 O.S.No.494/2011
ISSUE NO.6:-
44. In view of my finding on the above issue, plaintiffs proved that they and defendant No.1 and 2 are having 1/4th share each over the suit schedule property. The plaintiffs have also proved that gift deed dated: 16-02-2005 and rectification deed dated: 08-03-2007 are null and void it is not binding on plaintiffs. Accordingly, Khatha changed in the name of defendant No.4 has to be cancelled by directing defendant No.5 and 6. The plaintiffs are also entitled for permanent injunction against defendant No.3 and 4 restraining them from alienating or creating any sort of encumbrance over the suit schedule property and from obstructing plaintiff's possession and enjoyment of the suit schedule property. Hence, I answer issue No.6 in the affirmative.
ISSUE No.7:-
45. In view of my finding on the above issues, suit filed by the plaintiffs deserves to be decreed with costs. Accordingly, I proceed to pass the following order:-
ORDER 44 O.S.No.494/2011 The suit filed by plaintiffs is decreed with costs as against defendants No.3 and 4.
It is declared that plaintiffs are joint owners of the suit schedule property along with defendants No.1 and 2.
It is further declared that the registered gift deed dated: 16-02-2005 and rectification deed dated: 08-03-2007 executed by defendant No.3 in favour of defendant No.4 are null and void, illegal and non-est and not binding on plaintiffs.
The defendants No.5 and 6 are hereby directed to cancel the Khatha entered in the name of defendant No.4 in respect of the suit schedule property.
The defendants No.3 and 4, their men, agents, servants and all persons claiming though them are hereby permanently restrained from alienating or creating any encumbrance or third party right over the suit property and from interfering with plaintiff's possession and enjoyment of the suit schedule property.
Draw decree accordingly.
******* (Dictated to the Judgment Writer, transcribed by him, the transcript corrected by me, signed and then pronounced by me in open Court on this the 4th day of November 2015).
(MANJUNATH NAYAK) 45 O.S.No.494/2011 XVI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
()()()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFFS:-
PW.1 D.H. Narayanasa LIST OF DOCUMENTS MARKED FOR PLAINTIFFS:-
Ex.P-1 & 2 Copies of sale deed executed in favour of plaintiffs father.
Ex.P-3 to 10 Tax paid receipts Ex.P-11 Death certificate of plaintiff's father Ex.P-12 & 13 Judgment and decree in O.S.No.6882/1991 Ex.P-14 Letter Ex.P-15 Khatha extract Ex.P-16 Rectification deed Ex.P-17 Encumbrance Certificate Ex.P-18 Will LIST OF WITNESSES EXAMINED FOR DEFENDANTS:-
DW.1 Somashekara Shastri LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
Ex.D-1 Partition deed
Ex.D-2 & 3 Sale deeds
Ex.D-4 Letter issued by CITB
Ex.D-5 Original challan
Ex.D-6 & 7 Memo issued to plaintiffs father
Ex.D-8 & 9 Demand Notice
Ex.D-10 Statement of defendant No.1 filed in
OSNo.6882/1991
Ex.D-11 Written statement of D2 and 3 in OS 6882/1991
Ex.D-12 written statement filed in O.S.No.6882/1991
Ex.D-13 Original gift deed dated:16.02.2005
Ex.D-14 Rectification deed
46 O.S.No.494/2011
Ex.D-15to 23 E.C.
Ex.D-24to 28 Khatha Certificate
Ex.D-29 Notice issued by BBMP
Ex.D-30to 32 Khatha extract
Ex.D-33 Sale agreement dated:1.9.1972
Ex.D-34 GPA dated: 13-02-1976
Ex.D-35 original sale deed dated: 23-05-1962
Ex.D-36to 40 Tax paid receipts
Ex.D-41 Attendance register extract
Ex.D-42 Bill issued by GK Enterprises
Ex.D-43 & 44 Written statement in OS 6882/1991 Ex.D-45 Approved plan obtained by defendant NO.4 Ex.D-46to 66 Tax paid receipts Ex.D-67 & 68 Copy of Police complaint Ex.D-69to 72 Electricity bill paid receipts Ex.D-73to 80 Photos with CD Ex.D-81 Public notice issued in news paper dated:18.12.2010 ^^^^^^^ (MANJUNATH NAYAK) XVI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.47 O.S.No.494/2011
(Judgment pronounced in open Court vide separate judgment) ORDER The suit filed by plaintiffs is decreed with costs as against defendants No.3 and
4.
It is declared that plaintiffs are joint owners of the suit schedule property along with defendants No.1 and 2.
It is further declared that the registered gift deed dated: 16-02-2005 and rectification deed dated: 08-03-2007 executed by defendant No.3 in favour of defendant No.4 are null and void, illegal and non-est and not binding on plaintiffs.
The defendants No.5 and 6 are hereby directed to cancel the Khatha entered in the name of defendant No.4 in respect of the suit schedule property.
The defendants No.3 and 4, their men, agents, servants and all persons 48 O.S.No.494/2011 claiming though them are hereby permanently restrained from alienating or creating any encumbrance or third party right over the suit property and from interfering with plaintiff's possession and enjoyment of the suit schedule property.
Draw decree accordingly.
(MANJUNATH NAYAK) XVI ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU