Bangalore District Court
Savithramma vs Basheer Ahmed on 24 August, 2021
1 O.S.8156/2011
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 24 th DAY OF AUGUST, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.8156/2011
PLAINTIFF/S: 1. Savithramma,
W/o Late Papaiah,
Aged about 48 years,
2. Susheelamma,
D/o Late Papaiah,
W/o Shankar,
Aged about 32 years,
3. Geetha,
D/o Late Papaiah,
W/o Muniraja,
Aged about 30 years,
4. Radha,
D/o late Papaiah,
W/o Raja,
Aged about 29 years,
2 O.S.8156/2011
5. Manjunath,
S/o Late Papaiah,
Aged about 24 years,
6. Gopi,
S/o late Papaiah,
Aged about 20 years,
7. Ravi,
S/o Late Papaiah,
Aged about 17 years,
8. Varuna,
S/o Late Papaiah,
Aged about 14 years,
Plaintiff No. 7 and 8
are minors represented by
their mother natural guardian
1 st plaintiff herein
All are R/at Kalkere village,
Horamavu post,
Krishnarajapura hobli,
Bangalore east taluk.
(By Sri.KSS, Advocate)
Vs.
DEFENDANT/S: 1. Basheer Ahmed
S/o Shaik Nanne Saheb,
Aged about 45 years,
R/at Door no.52,
3 O.S.8156/2011
Chikka Mugappa colony,
Marathahalli post,
Vibutipura
K.R.Puram hobli,
Bangalore south taluk.
2. Anvar Basha,
S/o Sattar Saheb,
Aged about 52 years,
R/at Doddanekundi main road,
1 st cross, Harishchandra colony,
Bangalore - 560 037.
3. Muniyappa,
S/o Yellappa,
Aged about 53 years,
R/at No.6, Yellamma
temple road,
Vibhuthipura,
Marathalli post,
Bengaluru - 560 037.
(D1 & D2 Exparte
D3 By Sri.MBS, Advocate)
* * * * *
Date of institution of suit : 18.11.2011
Nature of suit : Declaration &
possession
Date of commencement
of recording of evidence : 06.02.2015
4 O.S.8156/2011
Date on which the judgment
was pronounced : 24.08.2021
Duration of the suit :Year/s Month/s Day/s
09 09 06
JUDGMENT
1. This is a suit filed by the plaintiffs against the defendant No.1 to 3 for the relief of declaration that they are the owners of the suit schedule property and to declare that sale deed dated 20.09.2001 executed by the defendant no.1 and 2 in favour of defendant no.3 is a fraudulent and invalid document and it is non est in the eye of law and therefore it is not binding on the plaintiffs. The plaintiffs also prayed to direct the 3 rd defendant to deliver the possession of the suit schedule property and also prayed for permanent injunction restraining the defendants from interfering with the peaceful 5 O.S.8156/2011 possession and enjoyment of the plaintiff's suit schedule property.
2. The suit schedule property is the site no.67, khatha no.163/93/ABC measuring to an extent of east to west 40 feet north to south 30 feet situated at Vibuthipura village, KR Puram hobli, Bangalore.
3. The plaint averments briefly stated as follows:
Plaintiff no.1 is the wife, plaintiff no.2 to 8 are the children of the deceased Papaiah. The suit schedule property was granted in favour of said Papaiah under the Ashraya scheme and accordingly Hakkupatra was issued on 2.11.1992. The plaintiffs are the absolute owners of the suit schedule property. The original Hakkupaptra had been collected by defendant no. 1 and 2 fraudulently. The 6 O.S.8156/2011 suit schedule property had been granted in favour of Papaiah with a condition that the site cannot be alienated for a period of 20 years. Papaiah who was doing cooli work had habit of drinking alcohol. The defendant no.1 and 2 who are no way concerned to the plaintiffs or Papaiah without the knowledge of Papaiah by violating the conditions of grant fraudulently obtained the GPA by the 1 st defendant on 27.9.1996 and by the 2 nd defendant on 25.9.1996 in respect of the suit schedule property. After obtaining the GPA by the defendant no.1 and 2 they have kept quiet for five years and thereafter after the death of Papaiah defendant no. 1 and 2 have colluded and executed the sale deed dated 20.09.2001 in favour of the 3 rd defendant. Sri.Papaiah the 1 st plaintiff's husband died on 23.6.2000 and the sale deed has been executed on 20.9.2001. Since the 7 O.S.8156/2011 date of grant the plaintiffs and the said Papaiah are in possession and enjoyment of the suit schedule property. On the southern side of the schedule property under the same Ashraya scheme site bearing No. 68 had also been granted in favour of the 1 st plaintiff. In the said site till today the plaintiffs are in possession and enjoyment. Since the date of grant the plaintiffs are in possession and enjoyment of the suit property and tax has also been paid to the concerned authorities. Now the suit schedule property comes under the jurisdiction of BBMP limits. Recently the 1 st plaintiff had paid up-to-date taxes to the suit schedule property in the name of her husband. It is contended that for the last 15 years the plaintiffs are residing in the parents house of plaintiff No. 1 at Kalkere and Sri.Papaiah was also residing with them. Taking advantage of the same 8 O.S.8156/2011 the 3 rd defendant without the knowledge of the plaintiffs in the year 2011 suddenly started to construct the building in the suit schedule property. The 3 rd defendant has started construction on the basis of the fraudulent and invalid document said to have been executed by the GPA holders after the death of the Papaiah by violating the conditions of the grant. The 3 rd defendant only on the basis of the invalid document he has constructed the building in the suit schedule property without the knowledge of the plaintiffs hurriedly within a span of six months. In the month of June 2011 when the plaintiffs visited near the suit property then they came to know that 3 rd defendant had started construction. Hence they asked the 3 rd defendant regarding the illegal construction. Then the 3 rd defendant has stated that he has already purchased the suit schedule property. 9 O.S.8156/2011
Even though the plaintiffs have given oral complaint to the police against the 3 rd defendant but they have not taken any action. It is contended that the 1 st plaintiff's husband at any point of time he has no intention to alienate the property in favour of anybody. The power of attorney have been created by the defendant no.1 and 2 fraudulently from the said Papaiah taking advantage of his weakness and without the knowledge of the plaintiffs. After the death of Papaiah the sale deed has been executed in colluding with the defendants. The sale deed obtained by the 3 rd defendant is a fraudulent document and the same is not binding on the plaintiffs. The possession of the 3 rd defendant is illegal. Hence on these grounds the plaintiffs prays to decree the suit.
10 O.S.8156/2011
4. Despite of service of summons to the defendant no. 1 and 2 they have not appeared before the court. Hence defendant 2 has placed exparte as per order dated 8.3.2012. and the defendant no. 1 placed exparte as per order dated 2.8.2014. The defendant no. 3 who entered appearance by engaging counsel has resisted the claim of the plaintiffs by filing his written statement which is briefly stated as follows:
5. The defendant No.3 has denied all the averments made in the plaint. It is denied that the plaintiffs are the absolute owners of the suit schedule property. The contention of the plaintiffs is that by violating the conditions of the grant the defendant no.1 and 2 have obtained GPA from the Papaiah in fraudulent way is denied as false. The contention of the plaintiffs that Papaiah died on 23.6.2000 and 11 O.S.8156/2011 thereafter the defendant No.1 and 2 have executed the sale deed is denied as false. The contention of the plaintiff's that they were in possession of the suit schedule property and site No. 68 are denied as false. The contention of the plaintiffs is that in the month of June 2011 they have visited near the suit property and came to know that the 3 rd defendant had started construction and then they asked the 3 rd defendant regarding illegal construction are all denied as false. The contention of the plaintiffs that the 3 rd defendant is obtained the sale deed on fraudulent documents are denied as false.
6. The defendant No. 3 has taken contention that the suit schedule property originally belongs to Papaiah S/o Balappa. Papaiah was sold the suit schedule property in favour of the defendant no. 1 12 O.S.8156/2011 and 2 by executing agreement of sale and also registered GPA vide document no.1247/96-97, book No. IV, volume no.189, page no.164-166 and also vide document no.1262/1996-97, book No. IV volume no.190 and page no.16-18 dated 25.9.1996 registered in the office of Sub-Registrar at Rajajinagar, Bangalore by receiving the entire sale consideration from the defendant No. 1 and 2. It is contended that by virtue of the sale agreement and also registered power of attorney the defendant no.1 and 2 were in physical possession and enjoyment of the suit schedule property. In turn the defendant No. 1 and 2 were sold suit schedule property in favour of the 3 rd defendant through registered sale deed dated 20.9.2001 registered in the office of Sub-Registrar, Krishnarajapuram, Bangalore. After purchasing the suit property the 3 rd defendant is in lawful physical 13 O.S.8156/2011 possession and enjoyment of the suit schedule property and the khatha also stood in the name of 3 rd defendant. He is paying the tax regularly. He is the absolute owner of the suit property. The 3 rd defendant belongs to schedule caste. The state government has allotted the grant for construction of residential house in the suit schedule property in the year 2010 by inspecting the spot and verified the documents. Accordingly the 3 rd defendant has constructed dwelling house in the schedule property in the year 2010 and also obtained electricity connection from the concerned authority. The loan was sanctioned by the BBMP for the construction of dwelling house. The 3 rd defendant is the absolute owner and lawful physical possession and enjoyment of the suit schedule property. Neither the plaintiffs nor anybody have any manner of right, title, 14 O.S.8156/2011 interest, possession over the suit schedule property. The suit schedule property was originally gramatana property of Vibuthipura village, vide khatha No. 163/93 ABC for the assessment year 1988-89. The schedule property is the self acquired property of Sri.Papaiah. Neither the plaintiffs nor anybody having right, title, interest over the suit property. The plaintiffs have created the alleged Hakkupatra in order to knock down the property from the hands of this defendant. The alleged Hakkupatra is bogus, concocted and manipulated document. The plaintiff's are not resident of Vibuthipura village. They are the permanent resident of Kalkere village. The suit of the plaintiff is barred by period of limitation. The court fee paid by the plaintiff is insufficient. Hence on these grounds the defendant No. 3 prayed for dismissal of the suit.
15 O.S.8156/2011
7. Based on the pleadings of the parties following issues have been framed:
(1) whether the plaintiffs prove that they are the absolute owners of the suit property ?
(2) whether the plaintiffs prove that the sale deed dated 20.09.2001 is null and void and not binding on the plaintiffs ?
(3) whether the defendants prove that the suit is barred by law of limitation ?
(4) whether the court fee paid is sufficient ?
(5) whether the plaintiffs prove that the 3 rd defendant is in illegal possession of the suit property ? 16 O.S.8156/2011 (6) whether the plaintiffs are entitled for the relief of declaration as prayed?
(7) whether the plaintiffs are entitled for the relief of possession of the suit property as prayed ?
(8) whether the plaintiffs are entitled for the relief of permanent injunction as prayed ?
(9) What order or decree ?
Additional Issue:
(1) Whether the defendant No. 3
proves the contents of para No. 18 to 21(a) of his written statement ?
8. On the side of the plaintiffs plaintiff No.1 examined as PW1 and documents Ex.P1 to Ex.P5 are marked. On the side of the defendants, the defendant No. 3 examined himself as DW1 and 17 O.S.8156/2011 documents Ex.D1 to Ex.D23 are marked. One witness is examined as DW2.
9. I have heard on both the sides. The learned counsel for the plaintiffs argued that the suit schedule site was allotted to one Papaiah S/o Balappa who is the husband of plaintiff No. 1 and father of plaintiff No. 2 to plaintiff No. 8. He submitted that there is a non-alienation clause in the Hakku Patra to restrain the allottee to alienate the site for 20 years. There was no right to alienate the suit property for 20 years period. He submitted that Sri.Papaiah belongs to depressed community. Taking advantage that Papaiah was drunkard the defendant No. 1 and 2 in the year 1996 taken a GPA of Papaiah fraudulently. He submitted that at no point of time Papaiah was residing at Rajajinagar. But the 18 O.S.8156/2011 defendant No. 1 and 2 have fraudulently obtained GPA and registered the same in Rajajinagar Sub- Registrar office. He argued that Papaiah the 1 st plaintiff's husband died on 23.6.2000. After the death of Sri.Papaiah the defendant No. 1 and 2 have colluded and executed sale deed dated 20.9.2001 in favour of the 3 rd defendant. He argued that plaintiffs have no knowledge about registered sale deed dated 20.9.2001. When the defendant No. 3 has started the construction in the suit schedule property then the plaintiffs on questioning the same came to know about the alleged sale deed dated 20.9.2001. He submitted that even today the khatha of the suit schedule property standing in the name of the plaintiffs. He argued that the defendant No. 3 in order to overcome the Hakku Patra condition subsequently amended the written statement. He 19 O.S.8156/2011 submitted that Papaiah was not keeping well. Hence he was shifted to Kalkere village. He argued that the plaintiffs in order to prove the relationship with the deceased Papaiah have produced the document Ex.P1 genealogical tree. Ex.P4 is the death certificate of Sri.Papaiah which shows that he died on 23.6.2000. Ex.P2 is the copy of sale deed dated 20.9.2001 executed by the defendant No. 1 and 2 in favour of the defendant No. 3. He submitted that the document Ex.P3 khatha certificate of the suit schedule property standing in the name of the plaintiffs. The document Ex.D13 is the document to show that earlier the property was standing in the name of Sri.Papaiah. He argued that the defendant No. 1 to 3 knowing very well that Papaiah died in the year 2000 itself have created the sale deed dated 20.9.2001. He argued that the documents Ex.D3 and 20 O.S.8156/2011 Ex.D4 General Power of Attorney dated 25.9.1996 have created documents. He submitted that these General Power of Attorneys were registered in the office of the Rajajinagar Sub-Registrar office, Bangalore. But the document Ex.P2 sale deed dated 20.9.2001 registered in the office of Krishnarajapura Sub-Registrar office, Bangalore. He submitted that the sale deed as per Ex.D2 which was executed by defendant No. 1 and 2 as a General Power of Attorney holder of the deceased Sri.Papaiah is invalid document and no title could pass based on this document in favour of the defendant No. 3. He argued that the documents Ex.D3 and Ex.D4 General Power of Attorney dated 25.9.1996 dies soon after the death of Papaiah on 23.6.2000 and these General Power of Attorneys are non-est in the eye of Law. He argued that the 21 O.S.8156/2011 defendant No. 3 has not produced any documents to show that the plaintiffs are not the legal heirs of Sri.Papaiah. He argued that the plaintiffs have proved that they are the absolute owners of the suit schedule property. The sale deed dated 20.9.2001 is null and void and not binding on the plaintiffs. He submitted that the 3 rd defendant is in illegal possession of the suit schedule property. He argued that the suit of plaintiff is not barred by period of Limitation. He submitted that the plaintiffs are entitled for recovery of possession of the suit schedule property.
10. On the other hand the learned counsel for the defendant No. 3 argued that the suit schedule property was self acquired property of Sri.Papaiah. He submitted that Sri.Papaiah executed the General 22 O.S.8156/2011 Power of Attorney in favour of the defendant No. 1 and 2 in the year 1996. He argued that the plaintiffs have not proved the document Ex.P4 death certificate to show that it pertains to the husband of plaintiff No. 1 and father of plaintiff No. 2 to 8. He argued that in Ex.P4 the father's name is mentioned as Balappa. He submitted that in Ex.P4 the name of the deceased is mentioned as Papaiah S/o Balappa whereas in Ex.P3 khatha certificate produced by the plaintiffs the name of the khathedar is mentioned as Papaiah S/o Chikka Balappa. Thus the document Ex.P4 death certificate is not of the same person in whose name the khatha was standing. He argued that the land was granted in the name of Sri.Papaiah S/o Balappa. Sri.Papaiah had independent right to sell the suit schedule property . The plaintiffs have no right over the suit schedule 23 O.S.8156/2011 property. In the year 1988 the khatha of the property was standing in the name of Sri.Papaiah. The defendant No. 3 has produced the document Ex.D13 property extract of the year 1988-89 to show that the property was standing in the name of Sri.Papaiah S/o Chikka Balappa. Ex.D15 is the property tax paid receipt. He argued that since the property was standing in the name of Sri.Papaiah S/o Chikka Balaiah in the year 1988-89 itself there is no chance to grant the property under Ashraya Scheme under Hakku Patra dated 2.11.1992. He argued that the plaintiffs have not produced any grant order to show that the suit schedule property was granted in the name of Sri.Papaiah. The plaintiffs have not produced order of DC, not produced the layout plan and allotment letter. He argued that Sri.Papaiah had absolute right to sell the suit schedule property. 24 O.S.8156/2011 Accordingly Sri.Papaiah sold the suit schedule property in favour of the defendant No. 1 and 2 in the year 1996 by executing the General Power of Attorney and sale agreement. He submitted that as Sri.Papaiah sold the suit schedule property in favour of the defendant No. 1 and 2 under registered General Power of Attorney and sale agreement the absolute right vested to the defendant No. 1 and 2 on the basis of General Power of Attorney and agreement. He argued that the defendant No. 3 has purchased the suit schedule property from the defendant No. 1 and 2 under registered sale deed dated 20.9.2001 and thereby the 3 rd defendant has became the absolute owner of the suit schedule property. He argued that plaintiff No. 7 and 8 who were shown as minors in the cause title attained the age of majority but the plaintiffs have not filed any 25 O.S.8156/2011 application to discharge the guardianship. He argued that the document Ex.P4 death certificate is not related to Sri.Papaiah who executed the General Power of Attorney and agreement in favour of the defendant No. 1 and 2. He argued that since the document Ex.P4 is not pertaining to the Sri.Papaiah on the basis of this document it cannot be held that the defendant No. 1 and 2 have executed the sale deed in favour of defendant No. 3 after the death of Sri.Papaiah. He argued that if at all Sri.Papaiah died in the year 2000 what prevented the plaintiffs to change the khatha in their name. Ex.P3 is dated 21.6.2011. If at all Sri.Papaiah died in the year 2000 the plaintiffs would have changed the khatha of the property immediately after the death of Sri.Papaiah. He submitted that PW1 admitted the documents Ex.D3, Ex.D4 General Power of Attorneys 26 O.S.8156/2011 and Ex.D5, Ex.D6 sale agreements. He argued that until and unless these documents General Power of Attorneys and sale agreements are cancelled these documents are valid documents. He submitted that after purchasing the suit schedule property the defendant No. 3 has constructed the house by obtaining the loan. He argued that the plaintiffs have failed to prove that they are the absolute owners of suit schedule property. The plaintiffs have failed to prove that Sri.Papaiah died on 23.6.2000. He argued that the plaintiffs are not entitled for recovery of possession of the suit schedule property.
11. The learned counsel for the plaintiff relied on the following decisions:
27 O.S.8156/2011
(1) 2012(1) SCC 656 Sooraj Lamp and Industries Private Limited (2) Through Director Vs. State of Haryana and another.
(2) 2007(6) AIR Kar (R) 290 R.Sandhyarani Vs. M.Mylarappa.
12. The learned counsel for the defendant No. 3
relied upon the following decisions:
(1) ILR 2004 Kar 1112 Smt.Devi and others Vs. Prabhakar and another.
(2) AIR 1971 SC 1865 Sait Tarajee Khimchand and others Vs. Yalamarti Satyam and others. (3) AIR 2009 SC 2966 T.K.Mohammad Abubucker (D) through legal representatives and others Vs. PSM Ahmad Abul Khader and others.28 O.S.8156/2011
(4) AIR 1989 Calcutta 202 Probhat Chandra Kanrar and others Vs. Smt.Ranibala Kanrar and others. (5) ILR 1998 Kar 1 (SC) State of Himachal Pradesh Vs.Keshav Ram and others.
(6) ILR 1998 Kar 2416 Komal Chopra Vs. Commissioner Corporation of the City of Bangalore.
13. My findings to the above issues are as under:
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 Affirmative
Issue No.6 : In the Affirmative
Issue No.7 : In the Affirmative
Issue No.8 : In the Negative
Addl. Issue No.1 : In the Negative
Issue No.9 : As per the final order
for the following:
29 O.S.8156/2011
REASONS
14. Issue No. 1 and 2, Additional Issue No. 1 and Issue No. 5: These issues have taken up together for discussion for the sake of convenience and in order to avoid repetition of facts and evidence. The plaintiffs have filed this suit for the relief of declaration of ownership of the suit schedule property and to declare that the sale deed dated 20.9.2001 executed by defendant No. 1 and 2 in favour of defendant No. 3 is a fraudulent and invalid document and it is non-est in the eye of law and therefore it is not binding on the plaintiffs. The main contention of the plaintiffs is that the suit schedule property was granted under Ashraya Scheme and Hakku Patra was issued on 2.11.1992 in favour of Papaiah who is the husband of plaintiff No. 1 and father of plaintiff No. 2 to 8 by imposing non- 30 O.S.8156/2011 alienation clause for a period of 20 years. It is the contention of the plaintiffs is that the defendant No. 1 and 2 who were no way concerned to the plaintiffs or Papaiah without the knowledge of Papaiah by violating the conditions of grant fraudulently obtained General Power of Attorney by the 1 st defendant on 27.9.1996 and by the 2 nd defendant on 25.9.1996 in respect of suit schedule property. It is the contention of the plaintiffs is that Papaiah died on 23.6.2000. After the death of Papaiah the defendant No. 1 and 2 have colluded with each other and executed sale deed dated 20.9.2001 in favour of 3 rd defendant. Hence the sale deed dated 20.9.2001 is invalid document and it is non-est in the eye of law. On the other hand the defendant No. 3 has taken contention that the suit schedule property originally belongs to Papaiah and it was his self 31 O.S.8156/2011 acquired property. It is the contention of the defendant No. 3 is that Papaiah sold the suit schedule property in favour of defendant No. 1 and 2 by executing agreement of sale and also registered General Power of Attorney dated 25.9.1996 i.e., by executing two General Power of Attorney and two agreement of sale deed in favour of defendant No. 1 and 2 respectively by receiving the entire sale consideration amount from defendant No. 1 and 2 and handed over the physical possession of the suit schedule property in favour of defendant No. 1 and
2. Thus by virtue of sale agreement and registered General Power of Attorney the defendant No. 1 and 2 were in possession and enjoyment of the suit schedule property. In turn the defendant No. 1 and 2 were sold the suit schedule property in favour of defendant No. 3 through registered sale deed dated 32 O.S.8156/2011 20.9.2001. Thereby defendant No. 3 became the absolute owner of the suit schedule property.
15. In order to substantiate the contention taken by the plaintiffs the plaintiff No. 1 who is examined as PW1 in her examination-in-chief affidavit has reiterated the plaint averments by deposing that the plaintiffs are the absolute owners of the suit schedule property. She states that the suit schedule property was granted in favour of her husband Papaiah S/o Balappa under the Ashraya Scheme. Accordingly Hakku Patra had been issued on 2.11.1992. She states that the original copy of Hakku Patra had been collected by defendant No. 1 and 2 fraudulently. She states that the suit schedule property was granted in favour of her husband with a condition that the site cannot be alienated for a period of two 33 O.S.8156/2011 years. She states that her husband Papaiah had the habit of drinking alcohol and he was doing coolie work. She states that the defendant No. 1 and 2 who are no way concerned to her family without the knowledge of her husband Papaiah by violating the condition of the grant fraudulently obtained General Power of Attorney by the 1 st defendant on 27.9.1996 and by the 2 nd defendant on 25.9.1996. She states that after obtaining the General Power of Attorney by the defendant No.1 and 2 they have kept quite for five years. Thereafter after the death of her husband Papaiah the defendants colluding with each other defendant No. 1 and 2 have executed sale deed dated 20.9.2001 in favour of 3 rd defendant. She states that Papaiah died on 23.6.2000 and the sale deed has been executed on 20.9.2001 after the death of Papaiah. She states that on the southern side of the 34 O.S.8156/2011 suit schedule property the government was granted the site bearing No. 68 in her favour under Ashraya Scheme. In the said site they are in possession and enjoyment. She states that the suit schedule property bearing site No. 67 also in their possession and enjoyment since from the date of grant in favour of her husband. Now the suit schedule property comes under the jurisdiction of BBMP limits. Recently she had paid up-to-date taxes to the suit schedule property in the name of her husband. She states that the defendant No. 1 and 2 have fraudulently created the documents. She states that for the last 15 years they are residing in her parental house at Kalkere and her husband Papaiah was also residing with them. Taking advantage of the same the 3 rd defendant without their knowledge illegally interfered with the possession over the suit schedule 35 O.S.8156/2011 property in the year 2011 and suddenly started constructing the building. She states that she had orally given complaint to the police against the 3 rd defendant but they have not taken any action. She states that at no point of time her husband Papaiah had any intention to alienate the property in favour of anybody. The Power of Attorney has been created by defendant No. 1 and 2 fraudulently from Papaiah taking advantage of his weakness and without their knowledge. After the death of her husband Papaiah the defendant No. 1 and 2 have executed the sale deed in favour of defendant No. 3. She states that after the death of her husband Papaiah she and remaining plaintiffs became the owners of the suit schedule property. She states that the sale deed obtained by the 3 rd defendant is a fraudulent document and the same is not binding on them and 36 O.S.8156/2011 possession of the 3 rd defendant is illegal. Hence she prays for the relief of declaration and for recovery of possession. The document Ex.P1 to Ex.P5 are marked through PW1. Ex.P1 is the genealogical tree of the family of Papaiah. Ex.P2 is the certified copy of the sale deed dated 20.9.2001 executed by defendant No. 1 and 2 in favour of defendant No. 3. Ex.P3 is the three Khatha certificates, Ex.P4 is the death certificate of Papaiah, Ex.P5 are six property tax paid receipts.
16. During the course of cross-examination of PW1 she has deposed that she do not know the suit schedule property number. She has admitted the suggestion that in the revenue records pertaining to gramatana land the suit schedule property was mentioned. She has admitted the suggestion that in 37 O.S.8156/2011 that revenue records there was mention regarding gramatana Khatha No. 163-93-ABC which was standing in the name of Papaiah from the year 1988. She has admitted the suggestion that during the life time of Papaiah he was in possession of the said property situated in gramatana and also was paying property tax to the government. She has admitted the suggestion that the suit property which was standing in the name of Papaiah was his self acquired property. PW1 has admitted the suggestion that during the life time of Papaiah he executed General Power of Attorney and affidavit in favour of defendant No. 1 and 2 in respect of said gramatana property. She has admitted the suggestion that in view of the documents executed by Papaiah the defendant No. 1 and 2 came in possession of the gramatana property. When question asked her that 38 O.S.8156/2011 defendant No. 1 and 2 have executed the sale deed in favour of defendant No. 3 she answered that the said sale deed was made fraudulently. She states that Papaiah executed General Power of Attorney and agreement in the year 1981-82. She has deposed that during the life time of Papaiah he was not challenged the General Power of Attorney and agreement in any court. PW1 has deposed that Papaiah died at Kalkere. She has denied the suggestion that at no point of time they were not residing at Vibuthipura. She has denied the suggestion that at no point of time the government was granted the suit property in favour of Papaiah on 2.11.1992 under Ashraya scheme. She has admitted the suggestion that defendant No. 3 had constructed the house in the suit schedule property in the year 2010. She has admitted photo and CD 39 O.S.8156/2011 confronted to her with respect to the house of the 3 rd defendant which is marked at Ex.D1. She has admitted the suggestion that 3 rd defendant belongs to Scheduled Caste. She has denied the suggestion that in order to create the document she was recently paid the property tax. She has admitted the suggestion that they have already sold site No. 68 to some 3 rd parties. She has denied the suggestion that the document Ex.P4 death certificate is not belongs to her husband Papaiah. She has denied the suggestion that the document Ex.P4 is belongs to some other person by name Papaiah of Kalkere village. She has denied the suggestion that the defendant No. 3 had constructed the house in the suit schedule property in the year 2008-09. She has admitted the suggestion that the suit schedule 40 O.S.8156/2011 property was the self acquired property of Papaiah. She has denied all other suggestions made to her.
17. Defendant No. 3 who is examined as DW1 in his affidavit filed for examination-in-chief has reiterated the written statement contentions. He has deposed that the genealogical tree produced by the plaintiff is concocted and created document. He states that the suit schedule property originally belongs to one Papaiah S/o Balappa. Said Papaiah was sold the suit schedule property in favour of defendant No. 1 and 2 by executing agreement of sale and also registered General Power of Attorney by receiving the entire sale consideration from defendant No. 1 and 2. He states that by virtue of the sale agreement and also registered General Power of Attorneys the defendant No. 1 and 2 were in 41 O.S.8156/2011 physical possession and enjoyment of the suit schedule property. In turn the defendant No. 1 and 2 were sold the suit schedule property in his favour through registered sale deed dated 20.9.2001 registered in the office of Sub-Registrar, K.R.Puram, Bangalore. After purchasing the suit schedule property he is in lawful physical possession and enjoyment of the suit schedule property and paying the taxes regularly as an absolute owner. He states that he belongs to scheduled caste. Hence the State Government has granted loan for construction of residential house in the suit schedule property in the year 2010 after spot inspection and verifying the document. Accordingly he had took the loan and constructed dwelling house in the schedule property in the year 2010 and also obtained electricity connection from the concerned authority. He states 42 O.S.8156/2011 that he is the absolute owner and in lawful possession and enjoyment of the suit schedule property. Neither the plaintiffs nor anybody have any manner of right, title, interest, possession over the suit schedule property. He states that the suit schedule property is originally gramatana property of Vibuthipura village vide Khatha No. 163-93-ABC for the assessment year 1988-89. The suit schedule property is the self acquired property of Papaiah. He states that the plaintiffs are created the alleged Hakku Patra for the purpose to knock off his valuable property. He states that the plaintiffs are not residents of Vibuthipura village, they are permanent residents of Kalkere village. Hence on these grounds he prayed for dismissal of the suit. 43 O.S.8156/2011
18. The defendant No. 3 has produced and got marked 23 documents. Ex.D1 is the photographs of the house which is marked in cross-examination of PW1. Ex.D2 is the original sale deed dated 20.9.2001 executed by defendant No. 1 and 2 in favour of defendant No. 3. Ex.D3 is the registered General Power of Attorney dated 25.9.1996 executed by Papaiah in favour of defendant No. 1, Ex.D4 is the registered General Power of Attorney dated 25.9.1996 executed by Papaiah in favour of defendant No. 2, Ex.D5 is the sale agreement dated 24.9.1996 executed by Papaiah in favour of defendant No. 1. Ex.D6 is the sale agreement dated 24.9.1996 executed by Papaiah in favour of defendant No. 2, Ex.D7 is the two assessment extracts, Ex.D8 is the copy of ration card of the plaintiff. Ex.D9 is the copy of order dated 16.9.2010 passed by BBMP, Ex.D9 is the 44 O.S.8156/2011 copy of order dated 16.9.2010 passed by BBMP, Ex.D10 is the endorsement issued by BBMP, Ex.D11 is the sketch of the suit schedule property, Ex.D12 is the two encumbrance certificates of suit schedule property, Ex.D13 is the Khatha certificate of the suit schedule property, Ex.D14 is the receipt for having dug bore well, Ex.D15 is the 17 property tax paid receipts, Ex.D16 and 17 are the three KEB bills and three KEB receipts, Ex.D18 is the water bill, Ex.D19 is the endorsement issued by BBMP, Ex.D20 is the copy of application given to BBMP for change of Khatha, Ex.D21 are two photos and CD of the suit schedule property, Ex.D22 is the four property tax paid receipts, Ex.D23 is the gazette notification.
19. During the course of cross-examination of DW1 he has deposed that he do not know the 45 O.S.8156/2011 plaintiffs and Papaiah. He has denied the suggestion that prior to the year 2000 the plaintiffs and 1 st plaintiff's husband Papaiah were residing by the side of his house. DW1 has deposed that site No.67 measuring east to west 30 feet and north to south 40 feet originally belongs to Papaiah and it was his self acquired property. He has deposed that Balaiah and Papaiah were sold the property situated at Vibuthipura on 24.9.1996 in favour of defendant No. 1 and 2. He states that he knows defendant No. 1 and 2 who were residing in their village but now they are not residing in the village. They were residing in the village till 2001, thereafter they left the village. He has denied the suggestion that prior to he purchased the property there was no Khatha and kandayam paid receipts in the name of defendant No. 1 and 2. He has admitted the suggestion that he 46 O.S.8156/2011 had purchased the property in the year 2001. He has denied the suggestion that even though he knows about the fact that Papaiah died there after he in collusion with defendant No. 1 and 2 had got executed the sale deed in his favour. He has denied the suggestion that till today the Khatha of the suit schedule property is standing in the name of Papaiah. He states that he was constructed the house in the suit schedule property in the year 2008-
09. Thereafter in the year 2014 he was given application to the BBMP for change of Khatha in his name. He states that the BBMP authorities have issued endorsement as per Ex.D17 that they will not change the Khatha during the pendency of this suit. He states that the kandayam paid receipts produced by the plaintiff are bogus documents. He has admitted the suggestion that the old Khatha No. 47 O.S.8156/2011 163/93-ABC of the suit schedule property was standing in the name of Papaiah. He has denied the suggestion that there exists 4 small sheds in the suit schedule property prior to he constructed the house therein. He has denied the suggestion that since there exists 4 sheet roofed sheds in the suit schedule property for that reason the BBMP authorities has given the Khatha number as 163/93-ABC. He has denied the suggestion that even though there were sheet roofed houses prior to construction of the house by him he is falsely deposing that it was vacant site. He has denied the suggestion that Ex.D3 and Ex.D4 General Power of Attorneys produced by him were registered in the Sub-Registrar office of Rajaji Nagar. He has denied the suggestion that he and the General Power of Attorney holders by giving false information and address have got registered 48 O.S.8156/2011 General Power of Attorney in the Sub-Registrar office. He has denied the suggestion that even though he knows about the fact that Papaiah was died in the year 2000 itself, thereafter he got executed the sale deed in his favour. He has deposed that in order to construct the house he was not obtained licence and sanction plan. He has denied all other suggestions made to him.
20. DW2 is a witness on the side of defendant No.3 in his examination-in-chief has deposed that the suit schedule property originallly belongs to Papaiah S/o Balappa who sold the property in favour of defendant No. 1 and 2 by executing agreement of sale and registered General Power of Attorney registered in the office of Sub-Registrar at Rajaji Nagar, Bangalore by receiving the entire sale 49 O.S.8156/2011 consideration from defendant No. 1 and 2. By virtue of sale agreement and registered General Power of Attorney. The defendant No. 1 and 2 were in physical possession and enjoyment of suit schedule property. In turn defendant No. 1 and 2 were sold the suit schedule property in favour of 3 rd defendant Muniyappa through registered sale deed dated 20.9.2001. After purchase of the suit schedule property the defendant No. 3 is in lawful physical possession and enjoyment of the suit schedule property and paying the property tax to the concerned authority as an absolute owner. He states that the defendant No. 3 who belongs to scheduled caste has obtained Anudana loan for construction of the residential house from State Government in the year 2010 and the concerned authorities inspected the spot, verified the documents and sanctioned the 50 O.S.8156/2011 loan, thereby defendant No. 3 has constructed dwelling house in the suit schedule property in the year 2010 and also obtained electricity connection from the concerned authority. He states that 3 rd defendant is the absolute owner in lawful physical possession and enjoyment of the suit schedule property. He states that the plaintiffs are not the residents of Vibuthipura village, they are permanent residents of Kalkere village and the plaintiffs have no manner of right, title, interest over the suit schedule property. During the course of cross-examination of DW2 by the learned counsel for the plaintiffs DW2 has deposed that the suit schedule property was the self acquired property of Papaiah, in whose name assessment extract of 1988-89 was standing. He states that there was a shed belongs to Papaiah in the suit schedule property. He has admitted the 51 O.S.8156/2011 suggestion that he and Papaiah belongs to same community. He has denied the suggestion that Papaiah is his father's elder brother's son. He states that Papaiah was residing in Vibuthipura village since 30-40 years. He states that he do not know about when Papaiah was died. He states that he was not present in the Sub-Registrar office at the time of registration of General Power of Attorney executed by Papaiah in favour of defendant No. 1 and 2 but he came to know about the registration of General Power of Attorney on 25.9.1996 itself. He states that at the time of execution of sale deed as per Ex.D2 Papaiah was alive. He states that he was seen the defendant No. 1 and 2 who were residing in the suit schedule property after they purchased the property from Papaiah. He has denied the suggestion that Papaiah was in the habit of consuming alcohol. He 52 O.S.8156/2011 has denied the suggestion that taking undue advantage that Papaiah was drunkyard the defendant No. 1 and 2 were created the document and sold the property in favour of defendant No. 3. He has admitted the suggestion that he was the member of Vijayapura city Panchayat. He has denied the suggestion that in order to help defendant No. 3 he has given false evidence.
21. I have appreciated the rival contentions. The main arguments of the learned counsel for the plaintiffs is that Papaiah S/o Balappa is the husband of plaintiff No. 1 and father of plaintiff No. 2 to 8. It is the specific contention of the plaintiffs is that the suit schedule property was allotted to Papaiah under Ashraya Scheme and Hakku Patra was issued on 2.11.1992. It is the specific contention of the 53 O.S.8156/2011 plaintiffs is that Papaiah husband of plaintiff No. 1 and father of plaintiff No. 2 to 8 died on 23.6.2000 at Kalkere village. It is the specific contention of the plaintiffs is that after the death of Papaiah the defendant No. 1 and 2 have colluded with defendant No. 3 and executed sale deed 20.9.2001 in favour of the 3 rd defendant. Hence this sale deed is void document and non-est in the eye of law. On the other hand the contesting defendant No. 3 has denied the relationship of the plaintiffs with Papaiah. The defendant No. 3 has denied that the suit schedule property was granted in favour of Papaiah under Ashraya scheme, Hakku Patra dated 2.11.1992. It is the contention of the defendant No. 3 is that Papaiah during his life time executed General Power of Attorney and executed agreement of sale in favour of defendant No. 1 and 2 by receiving the entire 54 O.S.8156/2011 consideration amount. In turn the defendant No. 1 and 2 have sold the suit schedule property in favour of defendant No. 3 under registered sale deed dated 20.9.2001. It is the contention of the defendant No. 3 is that the document Ex.P4 death certificate is not belongs to Papaiah who executed General Power of Attorney and agreement in favour of defendant No. 1 and 2. The learned counsel for the defendant No. 3 vehemently argued that in Ex.P4 death certificate name of the person is mentioned as Papaiah, his father's name is mentioned as Balappa but in other documents such as revenue records, i.e., document Ex.D13 the name of the occupier is mentioned as Papaiah S/o Chikka Balappa. He argued that since there is variance in father's name in the revenue records and in the death certificate it cannot be said that this document Ex.P4 is belongs to papaiah who 55 O.S.8156/2011 executed General Power of Attorney and sale agreement in favour of defendant No. 1 and 2. The learned counsel for the defendant No. 3 argued that the plaintiffs have not adduced evidence to show that plaintiff No. 1 is the wife and plaintiff No. 2 to 8 are the children of Papaiah. He argued that mere marking of the document is not sufficient to hold that plaintiff No. 1 is the wife and plaintiff No. 2 to 8 are the children of Papaiah. He argued that the death of Papaiah is not proved by the plaintiffs. The learned counsel for defendant No. 3 relied upon the decision reported in ILR 2004 Kar 1112 Smt.Devi and others Vs. Prabhakar and another wherein it is held that mere production and marking of documents as exhibits by the court cannot be held to a due proof of its contents, its execution must be proved by admissible evidence, i.e., by the evidence 56 O.S.8156/2011 of those persons who can vouch safe for the truth of the facts in issue. He relied upon the decision of Hon'ble Supreme Court reported in AIR 1971 SC 1865 in Sait Tharaji Keemchand and others Vs. Yelamatri Satyam and otehrs to contend that mere marking of the document as exhibits does not dispense with its proof. He relied upon the decision reported in AIR 2009 SC 2966 between T.K.Mohammad Abubekar (d) through legal representatives and others Vs. PSM Ahmed Abdul Khader and others to contend that in a suit for declaration of title and possession burden of proof is on the plaintiff to make out his title and entitlement to possession - he cannot succeed on any alleged weakness in title or possession of defendant. He relied upon the decision reported in ILR 1998 Kar 1 (SC) State of Himachal Pradesh Vs. Keshav Ram and others to contend that entry in revenue records 57 O.S.8156/2011 or papers by no stretch of imagination can form basis for declaration of title. He relied upon the decision reported in ILR 1988 Kar 1 Kamal Chopra Vs. Commissioner, Corporation of City, Bangalore to contend that issue of Khatha extract not conferring any title but evidencing only possession of property documents "In sub-section (3) means relevant documents supporting title to parties to property - corporation bound to issue Khatha on discharge of statutory obligation under sub-section (3).
22. On the other hand the learned counsel for the plaintiffs argued that the oral evidence of PW1 coupled with the document Ex.P1 genealogical tree is sufficient to hold that plaintiff No. 1 is the wife and plaintiff No. 2 to 8 are the children of deceased Papaiah. He argued that the document Ex.P4 is the 58 O.S.8156/2011 death certificate of Papaiah which is having evidentiary value. He argued that merely because in some revenue documents the name of the father of Papaiah is mentioned as Chikka Balappa it does not mean that the death certificate Ex.P4 is of different person. He argued that defendant No. 3 has not produced any document to show that Papaiah who allegedly executed General Power of Attorney in favour of defendant No. 1 and 2 was alive as on the date of execution of sale deed dated 20.9.2001 by defendant No. 1 and 2 in favour of defendant No. 3. He argued that the document Ex.D2 sale deed which was executed by defendant No. 1 and 2 as a General Power of Attorney holder of Papaiah after the death of Papaiah is void document and non-est in the eye of law. He relied upon the decision of Hon'ble Supreme Court of India reported in 2012(1) SCC 656 59 O.S.8156/2011 Suraj Lamp and Industries Private Limited (2) through Director Vs. State of Haryana and another to contend that immovable property can be transferred / conveyed only by Deed of Conveyance (sale deed) duly stamped and registered as required by law. The Hon'ble Supreme Court of India by explaining the nature and scope of an agreement for sale, Power of Attorney and living Will held that General Power of Attorney sales or sale agreement / General Power of Attorney / Living Will Transfers neither convey any title nor do they amount to transfer of, or create interest in, immovable property except to the limited extent of section 53(A) of T.P.Act. The learned counsel for the plaintiffs relied upon the decision of Hon'ble High Court of Karnataka reported in 2007(6) AIR Kar 290 between R.Sandya Rani Vs. M.Mylarappa to content that death of 60 O.S.8156/2011 member after executing Power of Attorney - right given to Power of Attorney holder also comes to end
- agent has no right to sell or bequeath property as per terms of Power of Attorney - registered sale deed executed by agent without any valid title over property is void.
23. The first and foremost point to be considered is whether the plaintiffs prove that plaintiff No. 1 is the wife and plaintiff No. 2 to 8 are the children of Papaiah. Second point to be considered is whether the plaintiffs prove that 1 st plaintiff's husband and plaintiff No. 2 to 8 father Papaiah died on 23.6.2000. PW1 in her affidavit filed for examination-in-chief by reiterating the plaint averments has deposed that the suit schedule property was granted in favour of her husband 61 O.S.8156/2011 namely Papaiah S/o Balappa. The document Ex.P1 genealogical tree is marked through PW1. During the course of cross-examination of PW1 by the defence nothing is elicited from her mouth to suggest that she is not the wife of Papaiah S/o Balappa. She has denied the suggestion that at the time of she given application for change of Khatha she by falsely mentioning that she is the wife of Papaiah filed application. It is not in dispute that plaintiff No. 2 to 8 are the children of plaintiff No. 1. The defendant No. 3 has produced the document Ex.D8 copy of ration card of plaintiff No. 1 wherein the names of plaintiff No. 5, 7, 8 are mentioned.
24. During the course of cross-examination of PW1 nothing is elicited from her mouth to say that who is her husband if not Sri.Papaiah. PW1 has denied the 62 O.S.8156/2011 suggestion that she is not the wife of Papaiah. The document Ex.P1 genealogical tree is prepared before notary public. The plaintiff has produced the document Ex.P5 six property tax paid receipts which would go to show that the suit property was entered in the name of plaintiff No. 1. The defendant No. 3 himself has produced the document Ex.D19 endorsement issued by the BBMP wherein it is mentioned that they will not cancel the Khatha standing in the name of Savithramma (plaintiff No.
1) till the civil court decides the matter. The document Ex.D20 is the copy of application given by the defendant No. 3 to the Joint Commissioner of BBMP requesting to cancel the Khatha standing in the name of Savithramma W/o late Papaiah and to mutate his name in the BBMP Khatha. If at all plaintiff No. 1 is not the wife of said Papaiah in 63 O.S.8156/2011 whose name the Khatha of the suit schedule property was standing there was no chance to mutate the name of plaintiff No. 1 if she is not the wife of said Papaiah. On perusal of the document Ex.P20 copy of application given by defendant No. 3 to BBMP he has not taken any such contention that Savithramma is not the wife of Papaiah in whose name the Khatha was standing. On the basis of the registered sale deed dated 20.9.2001 the defendant No. 1 sought to change the Khatha of the suit schedule property by cancelling the Khatha standing in the name of plaintiff No. 1. While giving application as per Ex.D20 to the revenue authorities the defendant No. 3 has not taken any such contention that Savithramma is not the wife of Papaiah. Under such circumstances it can be safely said that plaintiff No. 1 is the wife of late Papaiah 64 O.S.8156/2011 and plaintiff No. 2 to 8 are the children of plaintiff No. 1 and Papaiah. The oral evidence of PW1 which is supported by the document Ex.P1, Ex.D19 and Ex.D20 are sufficient to hold that plaintiff No. 1 is the wife and plaintiff No. 2 to 8 are the children of Papaiah.
25. It is the specific contention of the plaintiffs is that Papaiah, husband of plaintiff No. 1 and father of plaintiff No. 2 to 8 died on 23.6.2000 at Kalkere. The plaintiffs have produced and got marked the document Ex.P4 death certificate of Papaiah. The learned counsel for the defendant No. 3 has vehemently argued that the plaintiffs have not proved the document Ex.P4 death certificate to show that it pertains to the husband of plaintiff No. 1 and father of plaintiff No. 2 to 8. He argued that in Ex.P4 the 65 O.S.8156/2011 father's name of the deceased is mentioned as Balappa. He argued that in Ex.P3 Khatha certificate produced by the plaintiffs the name of khathedar is mentioned as Papaiah S/o Chikka Balappa. In Ex.D13 old property extract of the year 1988-89 also the name of the owner is mentioned as Papaiah S/o Balappa. By comparing all these documents Ex.P4, Ex.P3, Ex.D13 the defendant No. 3 would content that the document Ex.P4 death certificate is of different person than that of Papaiah who executed the registered General Power of Attorney and unregistered agreement of sale in favour of defendant No. 1 and 2 in respect of suit schedule property. On the other hand the learned counsel for the plaintiffs argued that the defendant No. 3 has not produced any documents to show that there was any other person by name Papaiah in Kalkeere and the 66 O.S.8156/2011 document Ex.P4 death certificate is not belongs to Papaiah in whose name the Khatha of the suit schedule property was standing. He argued that the document Ex.P4 is having evidentiary value.
26. I have appreciated the rival contentions. The document Ex.P4 is the death certificate of Papaiah S/o Balappa who died on 23.6.2000. In Ex.P4 the date of registration is mentioned as 26.6.2000. That means soon after the death of Papaiah S/o Balappa the entries were made in the death register maintained by Horamavu Panchayat in the year 2000 itself. This document Ex.P4 death certificate was issued on 17.7.2000, i.e., much prior to filing of this suit. Hence one thing is very clear that there is no chance to create this document after filing of the suit. Section 35 of Indian evidence Act is very clear 67 O.S.8156/2011 that the entry in any public or other official book register or (record or an electronic record) stating the fact in issue or relevant fact made by the public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book register (or record or an electronic record) is kept is itself a relevant fact. Thus under section 35 of Indian Evidence Act there is evidentiary value on the document such as death certificate or birth certificate issued by the proper authority. Ex.P4 death certificate was issued in the year 2000 itself. It is mentioned in Ex.P4 that Papaiah S/o Balappa was resident of Kalkere, K.R.Puram hobli, Bangalore south taluk. PW1 has deposed that for the last 15 years they are residing in her parental house at Kalkere and her husband Papaiah had also residing 68 O.S.8156/2011 with them. During the course of her cross- examination she has denied the suggestion that at no point of time Papaiah was not residing at Kalkere. Defendant No. 3 who has taken contention that this document Ex.P4 is not belongs to Papaiah in whose name the Khatha of the suit schedule property was standing, in order to substantiate this contention the defendant No. 3 has not given any contrary evidence to disbelieve the document Ex.P4. Only argument of the learned counsel for the defendant No. 3 is that in Ex.P4 the father's name of Papaiah is mentioned as Balappa but in revenue records the Khathedar name is mentioned as Papaiah S/o Chikka Balappa. It is pertinent to note that in the document Ex.D3 and Ex.D4 General Power of Attorneys relied by the defendant No. 3 the name of the executant is mentioned as Papaiah S/o Balappa. 69 O.S.8156/2011 In Ex.D5 and Ex.D6 sale agreements also the name of the executant / vendor is mentioned as Papaiah S/o Balappa. If at all Papaiah's father was called only by name Chikka Balappa there was no such chance to enter the name of the father of Papaiah as Balappa in the document Ex.D3 to Ex.D6. The document relied by the defendant No. 3 such as General Power of Attorneys and sale agreements marked at Ex.D3 to Ex.D6 indicates that Papaiah is the son of Balappa. Under such circumstances it cannot be said that the document Ex.P4 death certificate of Papaiah S/o Balappa is not that of the person in whose name the suit schedule property was standing. In Ex.D20 application given by defendant No. 3 to the Joint Commissioner of BBMP he was mentioned that the property was sold by Basheer Ahmed and Anwar Pasha (defendant No. 1 and 2) in his favour as a 70 O.S.8156/2011 General Power of Attorney holder of Papaiah. In Ex.D19 endorsement issued by the Assistant Revenue Inspector he has mentioned that Papaiah executed General Power of Attorney in favour of Basheer Ahmed on 25.9.1996 but after the death of Papaiah on 23.6.2000 the General Power of Attorney came to an end that is why the General Power of Attorney holders were no authority to execute the sale deed dated 20.9.2001. These observations is with regarding to Papaiah who was executed the General Power of Attorney in favour of defendant No. 1 and 2 and thereafter died on 23.6.2000. When defendant No. 1 and 2 themselves have allegedly taken possession of the suit schedule property from Papaiah S/o Balappa under General Power of Attorney and agreement and defendant No. 3 who was subsequent purchaser from defendant No. 1 and 2 based on the 71 O.S.8156/2011 General Power of Attorney dated 25.9.1996 and agreement executed by Papaiah S/o Balappa, under such circumstances the defendant No. 3 is now estopped from claiming that since there is variation in the father's name of Papaiah in the revenue records and in Ex.P4 the document Ex.P4 is not that of Papaiah to whom the suit schedule property originally belongs. The document Ex.P4 is having evidentiary value under section 35 of Indian Evidence Act. The defendant No. 3 has not produced any contrary document to show that Papaiah was alive as on the date of sale deed dated 20.9.2001 executed by defendant No. 1 and 2 in favour of defendant No.
3. During the course of cross-examination of PW1 nothing is elicited from her mouth to discard her version regarding the death of her husband Papaiah and with regarding to the document Ex.P4 death 72 O.S.8156/2011 certificate. More than that the defendant No. 3 has not deposed anything about whether Papaiah was dead or alive at the time when he was purchased the suit schedule property from defendant No. 1 and 2 under registered sale deed dated 20.9.2001. The oral evidence of PW1 which is supported by the document Ex.P4, Ex.D20, Ex.D19 and Ex.P3 are sufficient to hold that the document Ex.P4 is genuine document i.e., the document death certificate of Papaiah S/o Balappa who is the husband of plaintiff No. 1 and father of plaintiff No. 2 to 8 who died on 23.6.2000. Hence this court of the opinion that the plaintiffs have proved that Papaiah S/o Balappa who is the husband of plaintiff No. 1 and father of plaintiff No. 2 to 8 died on 23.6.2000. It is also proved that said Papaiah S/o 73 O.S.8156/2011 Balappa is the same person in whose name the Khatha of the suit schedule property was standing.
27. The plaintiffs have taken contention that the suit schedule property was granted in favour of Papaiah under the Ashraya scheme and accordingly Hakku Patra was issued on 2.11.1992. The defendant No. 3 has taken contention that the suit schedule property was not a granted land and no Hakku Patra was issued in favour of Papaiah. It is the contention of the defendant No. 3 is that the suit schedule property was standing in the name of Papaiah in the year 1988-89 itself and it was the self acquired property of Papaiah. In order to substantiate the contention taken by the plaintiffs that the suit schedule property was granted in favour of Papaiah under the Ashraya scheme and accordingly Hakku 74 O.S.8156/2011 Patra was issued in the name of Papaiah on 2.11.1992, the plaintiffs have not produced and got marked the Hakku Patra or copy of Hakku Patra. Even though PW1 in her examination-in-chief has deposed that original Hakku Patra had been collected by defendant No. 1 and 2 fraudulently the plaintiffs have not made any efforts to give secondary evidence and produced the copy of concerned register maintained by the authorities. If at all the suit schedule property was granted in favour of Papaiah under Hakku Patra dated 2.11.1992 the plaintiffs should have made an effort to collect the secondary evidence, i.e., to obtain certified copy of concerned register maintained by the issuing authority. But in this suit no efforts were made by the plaintiffs to lead the secondary evidence. Defendant No. 3 who has taken contention that the suit schedule property 75 O.S.8156/2011 was originally gramatana property of Vibuthipura village vide Khatha No. 163/93 ABC for the assessment year 1988-89 standing in the name of Papaiah has produced the document Ex.D13 property extract of the year 1988-89 which was standing in the name of Papaiah S/o Chikka Balappa. The defendant No. 3 has also produced the document Ex.D15, sixteen kandayam paid receipts of the year 1995, 1981, 1987, 2000, 2010 and subsequent years which would go to show that the suit schedule property even prior to 1992 was standing in the name of Papaiah S/o Chikka Balappa. PW1 during the course of her cross-examination admitted the suggestion that in the revenue records pertaining to gramatana land the suit schedule property was mentioned. She has also admitted the suggestion that in the revenue records there was mention 76 O.S.8156/2011 regarding gramatana Khatha No. 163-93-ABC which was standing in the name of Papaiah from the year 1988. PW1 has also admitted the suggestion that during the life time of Papaiah he was in possession of the said property situated in gramatana and was also paying property tax to the government. PW1 has admitted the suggestion that the suit schedule property which was standing in the name of Papaiah was his self acquired property. Thus the very admission given by PW1 would go to show that the suit schedule property which was in the gramatana area was standing in the name of Papaiah in the year 1988 also. Under such circumstances the contention of the plaintiffs that the suit schedule property was granted to Papaiah under the Ashraya scheme and accordingly Hakku Patra had been issued on 2.11.1992 is not believable. More than that the 77 O.S.8156/2011 plaintiffs have not produced the Hakku Patra or not lead any secondary evidence to show that such Hakku Patra was issued by the government on 2.11.1992. Hence this court of the opinion that the plaintiffs have failed to prove that the suit schedule property was granted in favour of Papaiah under the Ashraya scheme and Hakku Patra dated 2.11.1992. Even though the plaintiffs have failed to prove that the suit schedule property was granted land under Ashraya scheme and Hakku Patra had been issued to Papaiah but fact remains that the suit schedule property was the self acquired property of Papaiah.
28. PW1 in her cross-examination clearly admitted the suggestion that the suit schedule property which was standing in the name of Papaiah was his self acquired property. It is the contention 78 O.S.8156/2011 of the plaintiffs is that the defendant No. 1 and 2 who are no way concerned to the plaintiffs or Papaiah without the knowledge of Papaiah by violating the conditions of grant fraudulently obtained the General Power of Attorney by the 1 st defendant on 27.9.1996 and by the 2 nd defendant on 25.9.1996 in respect of the suit schedule property. It is the specific contention of the plaintiffs is that after obtaining General Power of Attorney by the defendant No. 1 and 2 they have kept quite for five years and thereafter after the death of Papaiah the defendant No. 1 and 2 have executed the sale deed dated 20.9.2001 in favour of the 3 rd defendant. This court has already given finding that Papaiah died on 23.6.2000. Admittedly the defendant No. 3 purchased the suit schedule property under the registered sale deed dated 20.9.2001 from the 79 O.S.8156/2011 defendant No.1 and 2 who were representing as General Power of Attorney holder of Papaiah. It is the specific contention of the plaintiffs is that since Papaiah died on 23.6.2000 the sale deed which has been executed by defendant No. 1 and 2 as a General Power of Attorney holder in favour of defendant No. 3 has become null and void as alleged General Power of Attorney was ceased on death of Papaiah. The plaintiffs have taken contention that the defendant No. 1 and 2 taking undue advantage of Papaiah was drunkyard without the knowledge of Papaiah fraudulently obtained General Power of Attorney in their favour. In this suit the plaintiffs have not examined any independent witness to show that the document Ex.D3 and Ex.D4 General Power of Attorney dated 25.9.1996 was got executed by defendant No. 1 and 2 by playing fraud upon 80 O.S.8156/2011 Papaiah. Merely because the document Ex.D3 and Ex.D4 were registered in the Sub-Registrar Office of Rajaji Nagar that cannot be the ground to suspect these documents. There is no hard and fast rule to register the General Power of Attorney in particular Sub-Registrar office. Ex.D3 and Ex.D4 General Power of Attorney dated 25.9.1996 are registered documents. Hence it can be said that the General Power of Attorney executed by Papaiah duly registered by the competent Sub-Registrar of Rajaji Nagar. It is not the contention of the plaintiffs is that the signature of Papaiah found in Ex.D3 and Ex.D4 are not that of Papaiah husband of plaintiff No.1. The plaintiffs have taken contention that Papaiah was doing coolie work and he had the habit of drinking alcohol, hence by taking advantage of the same the defendant No. 1 and 2 have obtained 81 O.S.8156/2011 fraudulent General Power of Attorney. Since the plaintiffs have not taken any such contention that the signature found in Ex.D3 and Ex.D4 is not that of Papaiah, under such circumstances it cannot be held that the document Ex.D3 and Ex.D4 were created fraudulently by defendant No. 1 and 2. PW1 during the course of her cross-examination admitted the suggestion that during the life time of Papaiah he executed General Power of Attorney and affidavit in favour of defendant No. 1 and 2 in respect of gramatana property. PW1 has also admitted the suggestion that in view of the documents executed by Papaiah the defendant No. 1 and 2 were came in possession of gramatana property. PW1 has deposed that Papaiah was executed General Power of Attorney and agreement in the year 1981-82. In the cross- examination of PW1 she may deposed the year of 82 O.S.8156/2011 execution of General Power of Attorney wrongly but fact remains that PW1 has clearly admitted the suggestion that during the life time of Papaiah he executed General Power of Attorney and agreement in favour of defendant No. 1 and 2 and delivered the possession of the gramatana property to them. The plaintiffs who have taken specific contention that during the life time of Papaiah the defendant No. 1 and 2 fraudulently got executed the General Power of Attorney have failed to prove the same. There is no cogent evidence on the side of the plaintiffs to show that the documents Ex.D3 and Ex.D4 were obtained by defendant No. 1 and 2 by playing fraud on Papaiah. Hence the document Ex.D3 and Ex.D4 General Power of Attorney dated 25.9.1996 cannot be suspected.
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29. Now the question is whether the defendant No. 1 and 2 who were the General Power of Attorney holder and agreement holder of Papaiah can execute the registered sale deed in favour of defendant No. 3 after the death of Papaiah. This court already held that the plaintiffs have proved that Papaiah died on 23.6.2000. It is not in dispute that the defendant No. 3 had purchased the suit schedule property from defendant No. 1 and 2 under the registered sale deed dated 20.9.2001. The defendant No. 3 has produced and got marked the documents Ex.D2 original sale deed dated 20.9.2001 executed by defendant No. 1 and defendant No. 2 as the General Power of Attorney holders of Papaiah. The recitals of the document Ex.D2 sale deed is very clear that Basheer Ahmed (defendant No. 1) and Anwar Pasha (defendant No.2) were executed this 84 O.S.8156/2011 sale deed in favour of Muniyappa (defendant No. 3) as General Power of Attorney holders of Papaiah S/o Balappa. There is also reference in Ex.D2 with regarding to General Power of Attorney executed by Papaiah in favour of Basheer Ahmad and Ahmed Pasha, i.e., defendant No. 1 and 2. The learned counsel for the plaintiffs relied upon the decision of Hon'ble High Court of Karnataka reported in 2007(6) Kar R 290 R.Sandhya Rani Vs. M.Mylarappa wherein the Hon'ble High Court of Karnataka held that death of principal after executing Power of Attorney - right given to General Power of Attorney holder also comes to end - agent has no right to sell or bequeath property as per terms of Power of Attorney
- registered sale deed executed by agent without any valid title over the property is void. This principle laid down by Hon'ble High Court of Karnataka is 85 O.S.8156/2011 aptly applicable to the present case. It is proved that Papaiah died on 23.6.2000. Soon after the death of Papaiah General Power of Attorney executed by Papaiah in favour of defendant No. 1 and 2 was ceased. Hence defendant No. 1 and 2 on the strength of General Power of Attorney have no authority to execute the sale deed in favour of defendant No. 3. Hence the sale deed executed by defendant No. 1 and 2 in favour of defendant No. 3 become illegal.
30. In this suit the defendant No. 3 has produced and got marked in all 23 documents which are marked at Ex.D1 to Ex.D23. Ex.D1 is five photographs which were marked during the course of cross-examination of PW1 which would go to show that the defendant No. 3 had already constructed the 86 O.S.8156/2011 house in the suit schedule property. During the course of cross-examination of PW1 she has admitted the suggestion that the defendant No. 3 had constructed the house in the suit schedule property in the year 2010. But PW1 has claimed that he had constructed the house by playing fraud and behind her back. The defendant No. 3 has produced the document Ex.D7 and Ex.D9 which would go to show that the BBMP authorities have sanctioned amount in order to construct the house. Defendant No. 3 has also produced the document Ex.D14 receipt for having dug the bore well. He has produced the document Ex.D15 property tax paid receipt which would go to show that he has paid the property tax in the year 2010. He has also produced KEB bills and water bill which are all marked as Ex.D16 to Ex.D18. Even though the defendant No. 3 got 87 O.S.8156/2011 executed the sale deed in the year 2001 itself but he has not changed the Khatha of the suit schedule property in his name. The plaintiffs have produced the document Ex.P3 and Ex.P5 which would go to show that the Khatha of the suit schedule property which was standing in the name of Papaiah was transferred to the name of plaintiff No. 1. The plaintiffs have also produced the document Ex.P5 property tax paid receipts to show that the plaintiffs have paid property tax of the suit schedule property during the year 2011. The very document Ex.D20 copy of application given by defendant No. 3 to BBMP and Ex.D19 endorsement given by BBMP would go to show that the BBMP authorities have refused to mutate the name of the defendant No. 3 in the revenue records on the ground that the General Power of Attorney which was executed by Papaiah in 88 O.S.8156/2011 favour of Basheer Ahmed would ceases after the death of Papaiah and General Power of Attorney holder had no authority to sell the property in favour of defendant No. 3. The document Ex.D19 and Ex.D20 produced by defendant No. 3 also shows that the defendant No. 3 has also not made any efforts to change the Khatha of the suit schedule property in his name even though he got sale deed dated 20.9.2001 from defendant No. 1 and 2. The arguments of the learned counsel for the defendant No. 3 is that the plaintiffs have not made any efforts to change the Khatha of the suit schedule property till 2011 and therefore the case of the plaintiff is doubtful cannot be acceptable. The defendant No. 3 is also fall on the same footing as he was also not made any efforts to change the Khatha of the suit schedule property in his name till filing of this suit. 89 O.S.8156/2011 The learned counsel for the defendant No. 3 himself relied upon the decisions of the Hon'ble Supreme Court reported in ILR 1998 KAR (1) to contend that entry in the revenue records or papers by no stretch of imagination can form basis for declaration of title. He also relied upon the decision reported in ILR 1988 KAR 2416 to contend that issue of Khatha Execution act not conferring any title but evidencing only possession of the property. If we applies these principles to the present case the Khatha of the suit schedule property is plays very less importance. It is not in dispute that the suit schedule property originally belongs to Sri.Papaiah. In this suit the plaintiffs have proved that the plaintiff No. 1 is the wife and plaintiff No. 2 to 8 are the children of Papaiah. It is also proved that Papaiah died on 23.6.2000, i.e., prior to execution of sale deed by 90 O.S.8156/2011 defendant No. 1 and 2 in favour of defendant No. 3. Soon after the death of Papaiah the documents Ex.D3 and Ex.D4 General Power of Attorneys were ceased.
31. In Ex.D2 sale deed address of Papaiah is mentioned as residing at No. 702, 10 th cross, I Main, Rajaji Nagar II Stage, Bangalore - 560 010. In the document Ex.D3 and Ex.D4 General Power of Attorneys the same addresses are mentioned. DW1 in his cross-examination has deposed that Papaiah was residing at Vibuthipura. It is not the defence of defendant No. 3 is that Papaiah was residing at Rajaji Nagar. It is pertinent to note that in Ex.D2 there is reference with regarding to execution of General Power of Attorney by Papaiah in favour of Basheer Ahmed and Anwar Pasha, i.e., defendant No. 91 O.S.8156/2011 1 and 2 which is mentioned that Papaiah executed General Power of Attorney in their favour and registered the same in the office of Registrar, K.R.Puram, Bangalore South Taluk. On perusal of the document Ex.D3 and Ex.D4 General Power of Attorneys it would go to show that these documents were registered in the Sub-Registrar office of Rajaji Nagar. There is no such document to show that the General Power of Attorney executed by Papaiah was registered in the office of Sub-Registrar of K.R.Puram, Bangalore. It is important to note that there is no mention in Ex.D2 sale deed with regarding to the alleged agreement of sale dated 24.9.1996, i.e., with regarding to the document Ex.D5 and Ex.D6. In Ex.D3 and Ex.D4 General Power of Attorneys also there is no mention regarding the execution of alleged sale agreement 92 O.S.8156/2011 dated 24.9.1996. The document Ex.D5 and Ex.D6 are dated 25.9.1996. If at all Papaiah was executed sale agreement on previous date they should have mentioned regarding the same in General Power of Attorney dated 25.9.1996. But on perusal of the document Ex.D3 and Ex.D4 there is no such mention regarding agreement of sale dated 24.9.1996. The Hon'ble Supreme Court in Suraj Lamp case has given finding regarding scope of the agreement of sale. The Hon'ble Supreme Court has clearly held that under section 54 of the Transfer of Property Act transfer of tangible immovable property can only be made by registered instrument. Without registration there is no transfer of ownership of property. The Hon'ble Supreme Court has clearly held that transfer of immovable property by way of sale can only be by the Deed of Conveyance (sale deed) in the absence of 93 O.S.8156/2011 a Deed of Conveyance (duly stamped and registered as required by law) no right, title or interest in an immovable property can be transferred. It is also held that in contract of sale (agreement of sale) which is not a registered Deed of Conveyance (deed of sale) would fall short of the requirement of section 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act. According to TP Act an agreement of sale whether with possession or without possession is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by registered instrument and an agreement of sale does not create any interest or charge on its subject matter. If we applies these principles to the present case the document Ex.D5 and Ex.D6 looses its 94 O.S.8156/2011 importance. The document Ex.D5 and 6 sale agreements will not helpful to defendant No. 3 as these documents does not create interest or charge on the suit schedule property. More than that in this suit the defendant No.3 has not taken any such defence of part performance of contract under section 53A of TP Act. It is the specific contention of the defendant No. 3 is that he has become the absolute owner of the suit schedule property by virtue of registered sale deed executed by defendant No. 1 and 2 in his favour on 20.9.2001. The defendant No.3 has not taken any defence regarding defendant No. 1 and 2 were in possession under part performance of contract and he has not taken any defence regarding part performance under section 53A of TP Act. On perusal of the document Ex.D2 sale deed relied by the defendant No. 3 there is no such mention in this 95 O.S.8156/2011 document regarding the alleged sale agreement dated 24.9.1994. Under such circumstances the document Ex.D5 and Ex.D6 sale agreement looses its importance. The plaintiffs have proved that Papaiah died on 23.6.2000. Hence after the death of Papaiah the General Power of Attorney executed by him in favour of defendant No. 1 and 2 was ceased. The defendant No. 1 and 2 were no authority to execute the sale deed in favour of defendant No. 3 after the death of Papaiah. The principles of decision cited by the learned counsel for the plaintiffs which is reported in 2007(6) AIR KAR 290 is aptly applicable to the present suit. The document Ex.D2 sale deed becomes void document as it was executed by defendant No. 1 and 2 as a General Power of Attorney holder of Sri.Papaiah after the death of 96 O.S.8156/2011 Papaiah. Hence based on the document Ex.D2 no right will be conferred upon defendant No.3.
32. Admittedly the suit schedule property was belongs to Papaiah, S/o Balappa. The plaintiffs have proved that the plaintiff No. 1 is the wife and plaintiff No. 2 to 8 are the children of Papaiah. After the death of Papaiah the plaintiffs inherited the suit schedule property which belongs to Papaiah. The plaintiffs have produced the document Ex.P3 and Ex.P5 which would go to show that after the death of Papaiah the BBMP authorities mutated the name of plaintiff No. 1 in the revenue records. It is now settled principle of law is that the General Power of Attorney is not an instrument of transfer any record to any right, title or interest in an immovable property. The Power of Attorney is the 97 O.S.8156/2011 creation of an agency whereby the granter authorises the grantee to do the acts satisfied therein on behalf of granter which when executed will be binding on the granter as if done by him. The Hon'ble Supreme Court observed so in Suraj Lamp case. In the present suit the defendant No. 3 basing on the document Ex.D2 sale deed claims that he is the absolute owner of the suit schedule property. It is proved that defendant No. 1 and 2 have executed this sale deed in favour of defendant No. 3 after the death of Papaiah. Ex.D2 is dated 20.9.2001 but Papaiah died much prior to that on 23.6.2000. Hence the General Power of Attorney executed by Papaiah as per Ex.D3 and Ex.D4 ceased soon after the death of Papaiah. Since there is no document of conveyance Papaiah continued as the owner of the suit schedule property till his death. After the death 98 O.S.8156/2011 of Papaiah the plaintiffs being his legal heirs succeeded the suit schedule property as the owner. The possession of the suit schedule property by defendant No. 3 is not legal possession. Since the defendant No. 1 and 2 have no authority to sell the suit schedule property to defendant No. 3 after the death of Papaiah the sale deed dated 20.9.2001 become null and void and not binding on the plaintiffs. The possession of the defendant No. 3 of the suit schedule property become illegal possession. The plaintiffs are the absolute owners of the suit schedule property. The plaintiffs have proved that the sale deed dated 20.9.2001 is null and void and not binding on the plaintiffs. Hence I answer issue No. 1 in the Affirmative, issue No. 2 in the Affirmative, issue No. 5 in the Affirmative and additional issue No. 1 in the Negative. 99 O.S.8156/2011
33. Issue No. 3: The defendant No. 3 has taken contention that the suit of the plaintiff is barred by period of limitation. The learned counsel for the defendant No. 3 argued that defendant No. 1 and 2 on the strength of General Power of Attorney and sale agreements taken possession of the suit schedule property from Papaiah in the year 1996. He argued that the defendant No. 3 has purchased the suit schedule property from defendant No. 1 and 2 under registered sale deed dated 20.9.2001 and taken possession of the suit schedule property and enjoyment of the suit schedule property. The plaintiffs have filed this suit in the year 2011 after 11 years from the date of purchase of the property by defendant No. 3 from defendant No. 1 and 2 is barred by period of limitation. On the other hand the learned counsel for the plaintiffs submitted that 100 O.S.8156/2011 the plaintiffs have filed this suit for the relief of declaration of ownership and praying to set aside the sale deed dated 20.9.2001 as it is non-est in the eye of law and not binding on the plaintiffs and direct the defendant No. 3 to deliver the possession of the suit schedule property in favour of the plaintiffs and also prayed for the relief of permanent injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. He argued that this suit filed by the plaintiff for the relief of ownership and recovery of possession is filed soon after the plaintiffs came to know that the defendant No. 3 started construction in the suit schedule property in the year 2010 by claiming that he was purchased the suit schedule property.
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34. I have appreciated the rival contentions. It is pertinent to note that in the examination-in-chief of DW1 even though he has deposed that the suit of the plaintiffs is barred by law of Limitation but he has not deposed anything about how the suit of the plaintiffs is barred by period of limitation. In this suit the defendant No. 3 has not taken any such contention that he has perfected the title over the suit schedule property by way of adverse possession. The defendant No. 3 has taken contention that he has become the absolute owner of the suit schedule property on the basis of the sale deed dated 20.9.2001 executed by defendant No. 1 and 2. Even though during the course of cross-examination of PW1 she has admitted the suggestion that defendant No. 1 and 2 were taken possession of the suit schedule property on the strength of the General 102 O.S.8156/2011 Power of Attorney and affidavit executed by Papaiah but she has taken contention that the General Power of Attorney was created document. Merely because the defendant No. 1 and 2 were taken possession of the suit schedule property in the year 1996 itself and thereafter in the year 2001, i.e., on 20.9.2001 they have handed over the possession of the suit schedule property to the defendant No. 3 on the strength of sale deed executed by them as a General Power of Attorney holder of Papaiah and thereafter the possession of the suit schedule property continued with the defendant No. 3 it cannot be said that this suit filed by the plaintiffs is barred by period of limitation because in this suit the defendant No. 3 has not taken any such contention that he has perfected his title by way of adverse possession. The defendant No. 3 on the strength of sale deed dated 103 O.S.8156/2011 20.9.2001 claimed that he is the absolute owner of the suit schedule property. The provision under Article 65 of Limitation Act it is very clear that for possession of immovable property or any interest therein based on title or file the suit for recovery of possession the limitation is 12 years from the date when the possession of defendant becomes adverse to the plaintiff. In the present suit since the defendant No. 3 has not taken any such contention of adverse possession it cannot be said that the suit of the plaintiff is barred by period of limitation. The suit of the plaintiff for the relief of declaration of ownership and for recovery of possession is within the period of limitation. For the purpose of instituting suit and for reckoning the starting point of limitation for challenging the sale deed would be as per Article 59 of the Limitation 104 O.S.8156/2011 Act. The knowledge of the fact of registration of the document which created entitlement of the plaintiff to institute the suit. As per the provision Article 59 of the Limitation Act the entitlement of the plaintiffs to institute suit for cancellaiton of sale deed arose only when the plaintiff got the knowledge of the registration of sale deed. In this suit the plaintiffs have taken specific contention that they came to know about illegal sale deed in the year 2011 when the defendant No.3 illegally constructing the house in the suit schedule property. PW1 has deposed that she and her children are residing in her parental house from past 15 years. Taking advantage of the same the 3 rd defendant without their knowledge in the year 2011 constructing the building in the suit schedule property. In the month of June 2011 they have visited near suit schedule property and then 105 O.S.8156/2011 they came to know that the defendant No. 3 had started construction in the suit property. Thereafter she asked the 3 rd defendant regarding the illegal construction. Then the defendant No. 3 has stated that he has already purchased the suit schedule property. PW1 has deposed that thereafter with the help of well wishers she has obtained all the documents in respect of the suit schedule property. Thus according to PW1 she came to know about the illegal construction of building by the 3 rd defendant only in the year 2011 and on enquiry the defendant No. 3 claimed that he had purchased the suit schedule property. According to PW1 date of knowledge about sale deed was in the year 2011. During the course of cross-examination of PW1 by the defence nothing is elicited from her mouth to suggest that PW1 or other plaintiffs had knowledge 106 O.S.8156/2011 about the sale deed dated 20.9.2001 executed by defendant No. 1 and 2 in favour of defendant No. 3 prior to 3 years of filing of this suit. Under such circumstances it cannot be held that prayer for declaration to set aside sale deed is barred by limitation. In this suit the plaintiffs have sought for the relief of declaration of ownership and for recovery of possession and also to declare the sale deed dated 20.9.2001 is fraudulent and invalid document and non-est in the eye of law and not binding on the plaintiffs. The plaintiffs have also sought for the relief of permanent injunction. The defendant No. 3 has not taken any defence of adverse possession. Hence suit is not barred by Limitation. Hence I answer issue No. 3 in the Negative.
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35. Issue No. 4: In the written statement the defendant No. 3 has taken contention that court fee paid by the plaintiff is insufficient. DW1 in his examination-in-chief affidavit has deposed that the plaintiffs have not properly valued the suit schedule property as on the date of filing the suit. He has deposed that the plaintiffs have not paid the correct court fee on the suit reliefs. He has produced and got marked the document Ex.D23 gazette notification dated 17.4.2007 issued by the Government of Karnataka notifying the market value of different villages comes within the jurisdiction of Mahadevapura Sub-Registrar office. The learned counsel for the defendant No. 3 submitted that the suit schedule property is situated at Vibuthipura village of K.R.Puram hobli, Bangalore east taluk, wherein the market value of the property is 1 O.S.8156/2011 mentioned as Rs.1,100/- square feet. He argued that the court fee paid by the plaintiff is insufficient. On the other hand the learned counsel for the plaintiffs argued that the plaintiffs have calculated the market value on the basis of the sale consideration amount mentioned in the sale deed executed by defendant No. 1 and 2 in favour of defendant No. 3 and court fee paid by calculating the market value under section 24(a) of Karnataka Court Fee and Suit Valuation Act for the relief of declaration and for possession and for the purpose of declaration the suit is valued under section 24(b) and for the relief of permanent injunction suit is valued under section 26(c) of KCF and SV Act and in all the plaintiffs have paid court fee of Rs.12,225 + 25 + 25 = 12,275 along with plaint and subsequently plaintiff have 2 O.S.8156/2011 paid court fee of Rs.25,925/-. In all plaintiffs have paid court fee of Rs.38,200/- which is sufficient.
36. I have gone through the valuation slip furnished by the plaintiffs. The plaintiffs on the basis of the sale consideration amount of Rs.1,80,000/- mentioned in the sale deed executed by defendant No. 1 and 2 in favour of defendant No. 3 have calculated the court fee of Rs.12,225/- under section 24(a) of KCF and SV Act for the relief of declaration of ownership and for possession. The plaintiffs have paid the court fee of Rs.25/- for the purpose of declaration under section 24(b) of KCF and SV Act. For the purpose of relief of permanent injunction the suit is valued under section 26C of KCF and SV Act and court fee of Rs.25/- was paid. In all the plaintiffs have paid court fee of 3 O.S.8156/2011 Rs.12,275/-. After the office raised objection in order to comply office objection the plaintiffs have paid court fee of Rs.25,925/-. Thus in all plaintiffs have paid court fee of Rs.38,200/-. The suit schedule property which is situated at Vibuthipura village, K.R.Puram hobli, Bangalore east taluk, measuring east to west 40 feet and north to south 30 feet in all 1,200/- square feet. The plaintiffs have filed this suit in the year 2011. According to the plaintiffs the defendant No. 1 and 2 are the General Power of Attorney holders of Papaiah executed the document Ex.P2 on 20.9.2001 by mentioning the sale consideration amount of Rs.1,80,000/-. It is interesting that though the plaintiffs have filed the suit almost 10 years after the alleged purchase by the defendant No. 3 the plaintiffs by showing the very same value mentioned in the sale deed have 4 O.S.8156/2011 paid the court fee at the time of filing the suit. On the strength of Ex.P2 / Ex.D2 it is difficult to hold that in the year 2011 also market value of that property remained as it is or stagnated. The defendant No. 2 has produced the document Ex.D23 notification issued by the Government which would go to show that the revenue lands in Vibuthipura market value ranges from Rs.880/- to Rs.1,320/- per square feet. The market value of CMC land is mentioned as Rs.1,100/- per square feet. If we calculate the market value mentioned in Ex.D23 at the rate of Rs.1,100/- per square feet then the market value of the suit property comes to Rs.1,200/- x 1,100 it comes to Rs.13,20,000/-. The plaintiffs have calculated the value of the property based on the document sale deed dated 20.9.2001 which is not acceptable.
5 O.S.8156/2011
37. PW1 in her oral evidence has deposed that the defendant No. 3 has constructed the house in the suit schedule property in the year 2010 itself. During the course of evidence DW1 also he has taken contention that he had constructed the house in the year 2010 itself. The plaintiffs have filed this suit in the year 2011. As on the date of filing of this suit the defendant No. 3 has already constructed the house in the suit schedule property. Hence the suit schedule property consisting of the building also. The defendant No. 3 has produced the document Ex.D23. The government valuation showing the market value of the property including structure. On perusal of the document Ex.D23 it would go to show that the market value of the property consisting of structure of CMC land is mentioned as 1100 per square feet. The plaintiffs should have paid the court fee by 6 O.S.8156/2011 calculating actual market value of the suit schedule property in the year 2011. The court fee paid by the plaintiff at the 1 st instance of Rs.12,275/- and subsequently paid Rs.25,925/-, in all Rs.38,200/- is insufficient. The actual extent of the suit schedule property is east to west 40 feet, north to south 30 feet which consists of the house built by the defendant No. 3. Hence if we calculate the market value at the rate of 1100 per square feet then it comes to Rs.13,20,000/- for total extent of 1200 square feet. The plaintiff should have calculated the court fee on market value of Rs.13,20,000/-. It being the revenue to the State there cannot be any leniency. As a matter of right court can levy fee and recover the same before the decree is drawn up. In that case court fee on Rs.13,20,000/- as per schedule of the Karnataka Court Fee and Suit 7 O.S.8156/2011 Valuation would be Rs.62,125/- for Rs.10,00,000/- and 5% exceeding Rs.10,00,000/-, i.e., Rs.16,000/- for remaining Rs.3,20,000/-, in all Rs.78,125/-. Out of that amount if Rs.38,200/- paid already by the plaintiffs is deducted still the plaintiffs have to pay Rs.39,925/-. This court already decided to answer these issues along with main suit. The court fee paid on the plaint is definitely insufficient and the plaintiffs have to pay the deficit court fee of Rs.39,925/- prior to drawing of decree. Accordingly I answer this issue in the Negative.
38. Issue No. 6 and 7: The plaintiffs have filed this suit for the relief of declaration of ownership over the suit schedule property and for recovery of possession of the suit schedule property from the defendant No. 3. While discussing issue No. 1 this 8 O.S.8156/2011 court held that the plaintiffs have proved that they are the absolute owners of the suit schedule property. While discussing issue No. 2 this court held that the plaintiffs to prove that the sale deed dated 20.9.2001 is null and void and not binding on the plaintiffs. Issue No. 3 with regarding to limitation is also answered in the Negative. Under such circumstances the plaintiffs are entitled for the relief of declaration of ownership and also entitled for the relief of possession of the suit schedule property as prayed in the plaint. Hence I answer issue No. 6 and 7 in the Affirmative.
39. Issue No. 8: The plaintiffs have also sought for the relief of permanent injunction to restrain the defendants from interfering with their peaceful possession and enjoyment of the suit schedule 9 O.S.8156/2011 property. Admittedly the suit schedule property is in possession of the defendant No. 3. Even though the revenue documents such as Khatha is standing in the name of the plaintiff but it is proved that the suit property is in possession of defendant No. 3. Under such circumstances the plaintiffs are not entitled for the relief of permanent injunction as prayed in this suit. Hence I answer issue No. 8 in the Negative.
40. Issue No.9: In view of my findings to issue No. 1 to 8 and additional issue No. 1, I proceed to pass the following:
ORDER The suit of the plaintiffs is partly decreed.10 O.S.8156/2011
It is hereby declared that the plaintiffs are the owners of the suit schedule property.
It is hereby declared that
the sale deed dated 20.9.2001
executed by defendant No. 1 and 2
in favour of defendant No. 3 is
invalid document and it is non-est
in the eye of law and therefore it
is not binding on the plaintiffs.
The plaintiffs are entitled
for the recovery of possession of
the suit schedule property from the
defendant No. 3.
The defendant No. 3 is
hereby directed to deliver the
possession of the suit schedule
property to the plaintiffs within six months from the date of decree.
The prayer of the plaintiffs
for permanent injunction is
rejected.
11 O.S.8156/2011
The plaintiffs shall pay
deficit court fee of Rs.39,925/-.
Parties shall bear their own
cost.
Office to draw decree
accordingly upon payment of deficit
court fee of Rs.39,925/- by
plaintiffs.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 24th day of August 2021.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Savithramma Witness examined for the defendant/s :
DW1 - Muniyappa
DW2 - L.Jayaram
12 O.S.8156/2011
Documents marked for the plaintiff/s :
Ex.P1 - Genealogical tree
Ex.P2 - certified copy of sale deed dated
20.9.2001
Ex.P3 - 3 encumbrance certificates
Ex.P4 - Death certificate of Papaiah
Ex.P5 - 6 Tax paid receipts
Documents marked for the defendant/s :
Ex.D1 - Five photos and one CD
Ex.D2 - Registered sale deed dated 20.9.2001
Ex.D3 - Registered GPA dated 25.9.1996
Ex.D4 - Registered GPA dated 25.9.1996
Ex.D5 - Sale agreement dated 24.09.1996
Ex.D6 - Sale agreement dated 24.9.1996
Ex.D7 - 2 Assessment extracts
Ex.D8 - certified copy of ration card
Ex.D9 - BBMP order dated 16.9.2010
Ex.D10 - Endorsement given by BBMP
Ex.D11 - Sketch
Ex.D12 - 2 encumbrance certificates
Ex.D13 - Khatha certificate
Ex.D14 - Borewell receipt
13 O.S.8156/2011
Ex.D15 - 17 tax receipts
Ex.D16 - 3 KEB bills
Ex.D17 - 3 KEB receipts
Ex.D18 - Water bill
Ex.D19 - Endorsement given by BBMP
Ex.D20 - Application given to BBMP
Ex.D21 - 2 Photos and 1 CD
Ex.D22 - 4 Tax receipts
Ex.D23 - Gazette notification
(Mohan Prabhu )
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.14 O.S.8156/2011
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiffs is partly decreed.15 O.S.8156/2011
It is hereby declared that the plaintiffs are the owners of the suit schedule property.
It is hereby declared that
the sale deed dated 20.9.2001
executed by defendant No. 1 and
2 in favour of defendant No. 3 is
invalid document and it is non-
est in the eye of law and
therefore it is not binding on the
plaintiffs.
The plaintiffs are entitled
for the recovery of possession of
the suit schedule property from
the defendant No. 3.
The defendant No. 3 is
hereby directed to deliver the
possession of the suit schedule
property to the plaintiffs within
six months from the date of
decree.
16 O.S.8156/2011
The prayer of the plaintiffs
for permanent injunction is
rejected.
The plaintiffs shall pay
deficit court fee of Rs.39,925/-.
Parties shall bear their own
cost.
Office to draw decree
accordingly upon payment of
deficit court fee of Rs.39,925/- by
plaintiffs.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.