Bangalore District Court
Smt. Tholasamma vs Sri. Hanumantharayappa on 1 December, 2015
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT: SRI. G.L. LAKSHMINARAYANA B.Com., LL.B.
XXXVII Addl. City Civil Judge, (CCH-38)
Bangalore
DATED: THIS THE 1st DAY OF DECEMBER 2015
OS.NO.8676 / 2013
PLAINTIFF/S SMT. THOLASAMMA
W/O LATE SIDDAGANGHAPPA
AGED ABOUT 70 YEARS,
RESIDING IN ONE PORTION OF A.C.
SHEET HOUSE AT No. 22, 7TH
CROSS, 6TH MAIN ROAD,
SANNAKKIBAYALU,
VRUSHABAVATHI NAGARA,
KAMAKSHIPALYA,
BANGALORE-560 079.
(By Sri. B.G. Thammaiah, Adv.)
Versus
DEFENDANT/S SRI. HANUMANTHARAYAPPA
S/O LATE SIDDAGANGAPPA
AGED ABOUT 39 YEARS,
RESIDING IN ONE PORTION OF A.C.
SHEET HOUSE AT No. 22, 7TH
CROSS, 6TH MAIN ROAD,
SANNAKKIBAYALU,
VRUSHABAVATHI NAGARA,
KAMAKSHIPALYA,
BANGALORE-560 079.
(By Sri. T.R. Advocate)
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O.S.No. 8676 /2013
Date of Institution of the 29.11.2013
suit
Nature of suit Suit for declaration and
permanent injunction
Date of commencement of 09.10.2015
recording of evidence.
Date on which judgment 01.12.2015
was pronounced.
Total Duration. Years Months Days
02 00 02
XXXVII ACCJ, BANGALORE
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O.S.No. 8676 /2013
JUDGMENT
The plaintiff has filed a suit against the defendant for the relief of declaration that the sale deed dated 12.04.2013 as null and void and the same is not binding on her and for permanent injunction, restraining the defendant from alienating or creating any type of encumbrance by way of charges, lien or mortgage and from interfering with the plaintiff peaceful possession and enjoyment of the suit schedule property.
2. The plaint averments in brief is as follows.
The plaintiff is the owner of the suit schedule property consisting of 6 portions of AC Sheet houses constructed in the suit schedule property. Her husband deserted her about 35 years back and even four other children including the defendants were minors until his death in the year 2012. Her husband was living with second wife and the said fact is very much known to the defendant. The defendant being her younger son it is very much known to the defendant that she acquired the suit 4 O.S.No. 8676 /2013 schedule property from the previous vendor Sri. Venkatesh through General Power of Attorney dated 27.11.1984 and sale affidavit dated 29.11.1984 sworn before the Court of Small Causes Judge. After purchasing it she developed the suit schedule property. The plaintiff is an old age lady. Even before his marriage or after his marriage neither the defendant and nor his wife were / are helping her for expenses. In the first week of April 2013, taking advantage of the old age, sickness, illiteracy and innocence of her, the defendant came along with his two friends and by pretending his love and affection towards the plaintiff, induced her that the Karnataka Government will give widow pension of Rs. 3,000/- per month to her, in addition to the old age pension giving and for that the plaintiff was to come along with him and his friends to the office of Sub-Registrar office to register her name for the widow pension. By telling that there should not be any deposit in the name of the plaintiff if widow pension is to be granted by the Government of Karnataka, by misusing her illiteracy the defendant by taking her thumb impression has also withdrawn the 5 O.S.No. 8676 /2013 post office saving bank amount of Rs. 1,11,300/-. She believed the inducement, words and version of the defendant since he is her son and his two friends and under the guise of registration of name of her for widow pension they taken her to the Sub-Registrar Office. The defendant obtained the registered sale deed of the suit schedule property on 12.04.2013, which is got registered in his name by the defendant in fraudulent way from the plaintiff, which is void under law and the same is not sustainable. On the strength of the registered sale deed the defendant illegally tried to dispossess the plaintiff and interfered in the peaceful possession and enjoyment of the suit schedule property. Hence, the plaintiff filed the suit.
3. On registration of the suit, the defendant was summoned to appear before the court. The defendant appeared through his counsel and filed written statement denying the plaint allegations. Further submitted that plaintiff is the absolute owner of the property and plaintiff and defendant are in joint possession of the suit schedule 6 O.S.No. 8676 /2013 property. The plaintiff at the time of construction of the house she availed hand loan from the 3rd person and the plaintiff has sold the suit schedule property in favour of the defendant and the plaintiff has filed the suit upon the instruction of her daughter and that the defendant has not played fraud on the plaintiff in purchasing the suit schedule property as stated in the plaint. The plaintiff just to harass and to make unlawful gain to her daughter has filed the suit against the defendant. Therefore, defendant prays for dismissal of the suit.
4. On the above pleadings, my learned predecessor framed the following :
ISSUES
1. Whether plaintiff prove that by playing fraud on her the defendant has obtained the registered sale deed of the suit property on 12.04.2013 as contended?
2. Whether plaintiff proves that she is in lawful possession of the suit schedule property as on the date of the suit?
3. Whether plaintiff further proves the alleged interference by the defendant?
4. Whether plaintiff is entitled for the relief sought?7
O.S.No. 8676 /2013
5. What order or decree?
5. In order to prove the case of the plaintiff she herself examined as PW 1 and marked documents at Ex.P1 to P13. The defendant neither adduced oral evidence nor produced any documents.
6. The learned advocate for the plaintiff filed written arguments. The defendant did not adduced any arguments.
7. My findings on the above issues are as follows.
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
Issue No.3: In the Affirmative
Issue No.4: In the Affirmative
Issue No.5: As per final order for the following.
REASONS
8. ISSUES NO.1 & 2: These issues are inter-linked
with each other and they require common discussion and hence, they are taken up together for discussion to avoid repetition.
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O.S.No. 8676 /2013
9. The plaintiff in the plaint contended that she is the owner of the suit schedule property consisting of 6 portions of AC Sheet houses constructed in the suit schedule property. She acquired the suit schedule property from the previous vendor Sri. Venkatesh through General Power of Attorney dated 27.11.1984 and sale affidavit dated 29.11.1984 sworn before the Court of Small Causes Judge. After purchasing it she developed the suit schedule property. In the first week of April 2013, taking advantage of the old age, sickness, illiteracy and innocence of her, the defendant came along with his two friends and by pretending his love and affection towards the plaintiff, induced her that the Karnataka Government will give widow pension of Rs. 3,000/- per month to her, in addition to the old age pension giving and for that the plaintiff was to come along with him and his friends to the office of Sub-Registrar office to register her name for the widow pension. By telling that there should not be any deposit in the name of the plaintiff if widow pension is to be granted by the Government of Karnataka, by misusing her illiteracy the defendant by 9 O.S.No. 8676 /2013 taking her thumb impression has also withdrawn the post office saving bank amount of Rs. 1,11,300/-. The defendant by taking LTM of the plaintiff on the paper fraudulently obtained the registered sale deed of the suit schedule property on 12.04.2013. There is no consideration amount passed from the defendant to the plaintiff. The defendant contended that the plaintiff upon the instructions of the daughter of the plaintiff she has filed suit and he has not played any fraud on the plaintiff in obtaining the registered sale deed. The plaintiff at the time of construction of the house she availed hand loan from the 3rd person and the plaintiff has sold the suit schedule property in favour of the defendant and the plaintiff has filed the suit upon the instruction of her daughter and that the defendant has not played fraud on the plaintiff in purchasing the suit schedule property as stated in the plaint. The plaintiff just to harass and to make unlawful gain she has filed the suit against the defendant.
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10. In order to prove the case of the plaintiff she herself examined as PW 1 and in her chief examination she has reiterated the averments made in the plaint and the evidence of PW 1 remains unchallenged. Ex.P1 reveals that on 27.11.1984 one Sri. Venkatesh has executed General Power of Attorney in favour of the plaintiff. Ex.P2 reveals that Venkatesh has executed affidavit in favour of plaintiff with respect of the suit schedule property. On the strength of the Ex.P1 and P2 Venkatesh has handed over the possession of the property in favour of the plaintiff. Ex.P3 reveals that on 12.04.2013 the defendant purchased the suit schedule property from the plaintiff. Ex.P4 is the tax paid receipts. Ex.P5 and P6 reveal that the name of the plaintiff has been entered in the revenue records as Kathedar. Ex.P7 and P8 reveal that the plaintiff paid tax in respect of the suit schedule property. Ex.P9 and P10 reveal that the plaintiff submitted a requisition to the Commissioner and the Revenue Officer not to change Katha in the name of the defendant. Ex.P11 reveals that the plaintiff has issued legal notice to the defendant to cancel the sale deed, 11 O.S.No. 8676 /2013 which is obtained by playing fraud. Ex.P12 and P13 reveal that the legal notice duly served on the defendant. The evidence of PW 1 and documents at Ex.P1 to P13 are unchallenged by the defendant. The defendant did not cross examine PW 1. In Ex.P3 found LTM of the plaintiff which clearly goes to show that the defendant played fraud on the plaintiff and obtained the LTM on it and fraudulently got registered the sale deed in his favour on 12.04.2013. The said sale deed is not binding on the plaintiff. The evidence of PW1 and Ex.P1 and P2, Ex.P4 to P8 clearly goes to show that the plaintiff is absolute owner of the suit schedule property and she is in peaceful possession and enjoyment of the suit schedule property. The defendant did not put any efforts to disprove the case of the plaintiff. Hence, issues No.1 and 2 are answered in affirmative.
11. ISSUE No.3: The plaintiff in her evidence clearly deposed that she is possession and enjoyment of the suit schedule property. On the strength of the sale deed, the defendant disposses the plaintiff and caused interference 12 O.S.No. 8676 /2013 in the peaceful possession and enjoyment of the suit schedule property by the plaintiff. When the plaintiff proved that she is the lawful owner of the suit schedule property, automatically she is at liberty to protect her lawful right over the suit schedule property. Hence, issue No.3 is answered in affirmative.
12. ISSUE No.4: In view of the finding on the issues No.1 to 3, I am of the opinion that the plaintiff is entitled for the relief as claimed in the plaint. Hence, issue No.4 is answered in affirmative.
13. ISSUE NO.5: In view of the above discussion on point No.1, I proceed to pass the following.
ORDER The suit of the plaintiff is decreed with cost. The sale deed dated 12.04.2013 registered in the office of Sriramapuram, Bangalore Sub-Registrar Office, registered in the Book No. I, in the document No. SRI-1- 00170/2013-14 stored in the CD No. SRID144 in respect 13 O.S.No. 8676 /2013 of the suit schedule property is declared as null and void and not binding on the plaintiff.
Further ordered that the defendant, their agents, workman or any other person/s represented him are restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and further restrained the defendant from alienating and creating any encumbrance by way of charges, lien or mortgage etc., Draw decree accordingly.
(Dictated to the Judgment Writer on computer, typed by him, corrected and then pronounced by me in open court, this the 1st DAY OF DECEMBER 2015) (G.L. LAKSHMINARAYANA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Smt. Tholasamma Documents marked on behalf of the plaintiff/s:
Ex.P1 - General Power of Attorney.
Ex.P2 - Affidavit
Ex.P3 - Sale deed dated 12.04.2013
Ex.P4 - Receipt
Ex.P5 - Katha Certificate
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Ex.P6 - Katha Extract
Ex.P7&8 Tax Paid Receipts
Ex.P9&10 Objections not to change Katha Ex.P11 Legal notice Ex.P12- Postal receipt Ex.P13 - Postal Acknowledgement List of witnesses examined on behalf of the Defendant/s:
NIL Documents marked on behalf of the Defendant/s:
NIL XXXVII ACCJ, BANGALORE 15 O.S.No. 8676 /2013 The judgment passed and pronounced in the open court, (vide separate). The operative portion of the judgment reads thus
-
ORDER The suit of the plaintiff is decreed with cost.
The sale deed dated 12.04.2013 registered in the office of Sriramapuram, Bangalore Sub-Registrar Office, registered in the Book No. I, in the document No. SRI-1-00170/2013-14 stored in the CD No. SRID144 in respect of the suit schedule property is declared as null and void and not binding on the plaintiff.
Further ordered that the defendant, their agents, workman or any other person/s represented him are restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and further restrained the defendant from alienating and creating any encumbrance by way of charges, lien or mortgage etc., Draw decree accordingly.
.
XXXVII ACCJ, BANGALORE 16 O.S.No. 8676 /2013