Bangalore District Court
Smt.S.Maria vs Venkatesh on 9 March, 2021
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 9th day of March, 2021.
Present
SRI.DINESH HEGDE, B.A.LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.No.3661/2016
PLAINTIFF : Smt.S.Maria,
w/o A.Robert, (Died on 2/4/2018)
aged about 53 years,
r/a Hulimavu Gate,
Behind Kanthi Industries,
Bannerghatta Road,
Bengaluru-560 076.
LRs of deceased plaintiff
1a) Robert,
S/o Anthony Muthu,
H/o Maria,
aged about 63 years.
1b) R.Anthony D'zoza,
s/o Maria,
aged about 33 years.
1c) R.Anthony Richard,
s/o Maria,
aged about 30 years.
All the above said parties
are r/at Hulimavu Gate,
Behind Kanthi Industries,
Bannerghatta Road,
Bengaluru-560 076.
( By Sri.Ravi Kumar.S, Advocate)
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O.S.No.3661/2016
V/S
DEFENDANTS: 1.Venkatesh,
s/o Narasimha Reddy,
aged about 69 years,
r/at Garvebhavi Palya,
Begur Hoblli,
Bengaluru South Taluk.
2. Smt.Anusuya.B.K,
w/o M.N.Swamy,
aged about 41 years.
3. Smt.Dr.Panchaksheri Prasanna.B.K,
s/o T.Krishnappa,
aged about 38 years.
Both the defendant No.2 & 3 are
r/at No.265, 15th Cross,
Vilson Garden, Bengaluru.
4. Smt.Savitha Mery.B.R,
w/o C.Pushparaj,
aged about 44 years.
R/at No.2, 1st Cross, 2nd Main,
Someshwara Nagar, 1st Block,
Jayanagara,
Bengaluru-11.
5. Sri.Srinivasan.K,
s/o Kalaimani,
aged about 28 years.
6. Keerthi Ram.K,
s/o Kalaimani,
aged about 28 years.
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O.S.No.3661/2016
Both defendant No.5 & 6 are
r/at No.29, 16th Cross, 8th Main,
Lakkasandra, Bengaluru-30.
(D.1 - Exparte)
(D.2 to D.4 - By Sri.S.P., Advocate)
(D.5 & D.6 - By Sri.GMR, Advocate)
Date of Institution of the suit : 13/5/2016
Nature of the Suit : Declaration & Possession
Date of commencement of recording
of evidence : 17/7/2018
Date on which the Judgment was
pronounced : 9/3/2021
Year/s Month/s Day/s
Total Duration : 04 09 26
(Dinesh Hegde)
XIX Addl.City Civil & Sessions Judge,
Bangalore City.
JUDGMENT
The plaintiff has filed this suit against defendants for the relief of declaration to declare that the she is the 4 O.S.No.3661/2016 absolute owner of the suit schedule property and direct the defendant No.5 & 6 to deliver the vacant possession of the suit schedule property and to declare that 2 sale transaction interse between defendant No.1 with defendant No.2 & 3 vide sale deed dated 25/6/2004 and subsequent sale made out between defendant No.2 & 3 with defendant No.4 vide sale deed 14/2/2012 and subsequent sale made between defendant No.4 with other defendant No.5 & 6 dated 18/9/2015 are illegal and void and not binding on the plaintiff and are liable to be set-aside.
2. The case of plaintiff in nutshell:-
The plaintiff is the absolute owner of the site bearing No.20 and 21 measuring East to West 54 ft and North to South 51 ft, situated at Parappana Agrahara Village, Khatha No.45/7, Begur Hobli, Bengaluru South Taluk, Bengaluru which is described as the schedule property and she has purchased the same from the 1 st 5 O.S.No.3661/2016 defendant by virtue or Registered Sale deed dated 7/12/2000. Based on the above sale deed, plaintiff has got khatha from the competent village panchayath and presently at BBMP, she has has regularly paying property tax to the competent authorities till today. As on the date of purchase, the plaintiff was in peaceful possession and enjoyment of the suit schedule property without hindrance of any body.
3. It is further stated that such being the facts, surprisingly, during the month of April 2016, plaintiff has received a Caveat issued by the defendant No.5 and learnt that defendant No.5 is claiming to be the owner in possession and enjoyment of the Site No.21 (schedule property) purchased the same from defendant No.5 /Smt.Savitha Mery under a sale deed dated 18/9/2015. After she came to know of the above said fact, the plaintiff visited the suit schedule property and found that 5th defendant is in possession and put up construction over the suit schedule property. The plaintiff questioned 6 O.S.No.3661/2016 about their illegal act of construction and she has narrated about her right and ownership over the schedule property. For which, defendant No.5 and 6 claiming to be the owners with supporting documents. The plaintiff has obtained the certified copies of the competent authority, verified and learnt that defendant No.1 suppressing earlier sale made in favour of the plaintiff again, he sold the schedule sites in favour of defendant No.2 & 3. Subsequently, the defendant No.2 & 3 have sold the same sites in favour of Savitha Mery by virtue of sale deed dated 14/12/2012 and she in turn sold the schedule sites in favour of defendant No.5 & 6 vide sale deed dated 18/9/2015.
4. It is further stated that at the first instance, the defendant No.1 has sold the schedule property in favour of the plaintiff and delivered the possession of the schedule property and accordingly, plaintiff is the absolute owner of the suit schedule property. The 7 O.S.No.3661/2016 defendant No.1 illegally with an intention to defeat the rights of the plaintiff subsequently, sold the schedule property in favour of defendant No.2 & 3 and hence, they are illegal and void and all the other sale transactions interse between the defendant No.1 with other defendants are not within knowledge and information of this plaintiff and are illegal, unlawful and void ab initio, they are not binding on the plaintiff and re liable to be set-aside. Hence, the plaintiff was constrained to file this suit for the relief of declaration and possession and prayed to decree the suit.
5. After service of suit summons, defendant No.1 remained absent. Hence, he was placed exparte. The defendant No.2 to 4 appeared through their counsel and filed written statement. Defendant No.5 & 6 appeared through their counsel, but they did not file their written statement.
6. The defendant No.2 to 4 in their separate written statement have contended that the suit is hopelessly 8 O.S.No.3661/2016 barred by limitation and hence, the same is liable to be dismissed on the ground of limitation, wherein this issue has to be considered and tried as a preliminary issue, the cause of action arose during the year 2000, where as the suit is filed in the year 2016. The plaintiff has sought for the relief of declaration in respect of the suit schedule property wherein the plaintiff necessarily has to pay the court fee in terms of the market value of the property in question not other wise as paid, on this sole ground alone, the suit is not maintainable, the suit is deliberate under valued, payment of proper and correct court fee has to be tried as a preliminary issue, until and unless proper and necessary court fee is paid the suit cannot be permitted to proceed with.
7. They have further contended that the plaintiff is not a owner of the property and at no point of time, she was in in possession as alleged in the plaint. The documents which are produced before this court are fabricated, concocted and created to mislead this court 9 O.S.No.3661/2016 so as to have a wrongful gain at the cost of this defendant. Therefore, the plaintiff has to prove her title over the property. The defendant No.2 to 4 are not aware of the alleged sale transaction between plaintiff and 1st defendant until receiving summons from this court. The defendant No.5 and 6 are the present owners and in possession and enjoyment of the suit schedule property as learnt by the plaintiff and admittedly, they have purchased the same from the 4th defendant by virtue of a sale deed dated 18/9/2015 for the valuable consideration, in fact, a a bonafide purchaser for valuable consideration in good faith, since from the date of purchase, the defendant No.5 & 6 are in actual, lawful possession and enjoyment of the suit schedule property.
8. They have denied the averments made in the plaint that the plaintiff visited the suit schedule property and found that 5th defendant is in possession and put up construction over the suit schedule property and questioned about their illegal act of construction and she 10 O.S.No.3661/2016 has narrated about her rights and ownership over the schedule property for which defendant No.5 & 6 claiming to be the owners with supporting documents and plaintiff is put to strict proof of the same.
9. The defendants have admitted that the 1 st defendant has executed the sale deed in favour of the 2nd and 3rd defendant vide sale deed dated 25/6/2004 in respect of the suit schedule property and from the date of purchase, the defendant No.2 & 3 are in peaceful possession and enjoyment of the schedule property, having paid taxes and incorporated their names in the khatha records of panchayath. They have further admitted that subsequently, the defendant No.2 & 3 have sold the same to defendant No.4 vide 2 sale deeds dated 14/12/2012 and thereafter, khatha has been changed in to the name of 4th defendant, who in turn has paid up to date taxes and constructed the shed in the suit schedule property.
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O.S.No.3661/2016
10. They have further contended that the 4 th defendant from the date of purchase till she executed the sale deed in favour of defendant No.5 & 6, she was in peaceful possession and enjoyment of the suit schedule property without any interference and objections from anybody. The 4th defendant having sold the schedule property through the sale deed dated 18/9/2015. The defendant No.5 & 6 have verified the title and have also obtained the legal opinion thereby notifying the general public about his intention of purchase by publishing the same in the daily news papers, actual and peaceful possession of the suit schedule property has been delivered in this defendants in view of the non-receipt of any objections or queries from the concerned, the defendant No.5 & 6 have purchased the property in question, even otherwise the encumbrance certificate did not depict any transaction of sale between plaintiff and the 1st defendant.
11. The defendants have denied the averments made 12 O.S.No.3661/2016 in the plaint that the defendant No.1 has sold the schedule property in favour of the plaintiff and delivered the possession of the schedule property and accordingly, plaintiff is the absolute owner of the suit schedule property. The defendant No.1 illegally with an intention to defeat the rights of the plaintiff subsequently sold the schedule property in favour of defendant No.2 & 3 and hence, they are illegal and void and all the other sale transactions interse between the defendant No.1 with other defendants are not within knowledge and information of this plaintiff and are illegal, unlawful and void ab initio and plaintiff is put to strict proof fo the same. At any point of time, the plaintiff was neither in possession nor in occupation as alleged and it is self serving statement in collusion with the 1st defendant.
12. The defendants have further contended that they are genuine buyers of the property and they are not aware of any information or knowledge with regard to the plaintiff transactions with first defendant. The 13 O.S.No.3661/2016 plaintiff has filed this suit suit for possession that itself show that they are not in possession since from the date of alleged sale deed executed by the 1st defendant in favour of plaintiff. The plaintiff has filed suit for declaration and possession. The date shown in the cause of action para is 7/12/2000. From the above date, till today, the plaintiff is not in possession. Therefore, the suit itself is barred by limitation and the date of receiving the caveat in the month of April 2016 is not the date of cause of action arose, therefore, the plaintiff filed this suit without any cause of action. The suit is not properly valued and the court fee paid is insufficient, the plaintiff has not paid the court fee in respect of 2 nd prayer, wherein, she is seeking a prayer for sale deed are void and illegal, as such, she has to pay the court fee as prescribed under the provisions of Karnataka Court Fee and Suit Valuation Act for the present market value of the suit schedule property. Hence, prays to dismiss the suit of plaintiff with exemplary costs. 14
O.S.No.3661/2016
13. Based on the above pleadings, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that he is the absolute owner of the schedule property by virtue of the sale deed executed by defendant No.1 in his favour dated 7/12/2000?
2. Whether the plaintiff proves that defendant No.5 is in possession of the schedule property and occupied the same without the knowledge of the plaintiff and raising construction claiming to have purchased the same from defendant No.4 under registered sale deed dated 18/9/2015?
3. Whether the plaintiff is entitled for possession of the schedule property to be delivered from defendant No.4 & 5?
4. Whether the court fee paid by plaintiff is proper and sufficient computed on present market value under S.24 of the Karnataka Court Fee and Suits Valuation Act?15
O.S.No.3661/2016
5. Whether the defendant No.5 & 6 prove that they are the bonafide purchaser of schedule property from defendant No.4?
6. Whether the suit of plaintiff lacks cause of action?
7. What order or decree?
14. The plaintiff has been examined as P.W.1 and marked Ex.P.1 to Ex.P.11. The defendants have not adduced evidence in support of their defence.
15. Heard the arguments and perused the records.
16. My findings on the above issues are as follows:-
Issue No.1:- In the Affirmative;
Issue No.2:- In the Affirmative;
Issue No.3:- In the Affirmative;
Issue No.4:- In the Affirmative;
Issue No.5:- In the Negative;
Issue No.6:- In the Negative;
Issue No.7:- As per the final order for the following:-16
O.S.No.3661/2016 REASONS
17. ISSUE No.1 to 3 & 5:- These issues are taken up together for consideration in order to avoid repetition of facts.
18. It is the specific case of the plaintiff that the 1 st defendant had sold the suit schedule property in her favour through a sale deed dated 7/12/2000 and she was put in possession. However, the defendant No.1 with an intention to defeat the rights of the plaintiff, subsequently sold the schedule property in favour of defendant No.2 & 3 and without the knowledge of the plaintiff . Therefore, she filed the suit for declaration of title and delivery of possession from the subsequent purchasers i.e., defendant No.5 & 6 and also to declare the sale deeds are void and not binding on her and also to set-aside the sale deeds.
19. The case of the defendant No.5 & 6 is that they are the bonafide purchasers of the suit schedule property. To prove the contention of the plaintiff, 17 O.S.No.3661/2016 plaintiff No.1(a) has been examined as P.W.1 and got marked Ex.P.1 to Ex.P.11.
20. Ex.P.1 is the original sale deed dated 7/12/2000 reveal that Sri.G.N.Venkatesh s/o Narasimha Reddy who is the defendant No.1 herein has executed a Registered Sale deed in favour of Smt.S.Mariya who is the deceased plaintiff herein with respect of the property bearing House List No.20 & 21, khatha No.45/7 situated at Parappana Agarahara village, Begur Hobli, Bangalore South Taluk measuring 54 ft x 51 ft along with half- square ACC sheet house, mud flooring, without any civil amenities for a sale consideration amount of Rs.1,18,000/-. The recital of the sale deed reveal that the vendor delivered the vacant and clear possession of the schedule property on the date of sale deed itself.
21. Ex.P.2 is the tax demand register extract reveal that the concerned Revenue Authorities issued the demand of tax from the plaintiff and her name had been 18 O.S.No.3661/2016 entered in the land tax assessment register. The BBMP also issued Form B Property Register extract in the name of the plaintiff to an extent of the land measuring 51 x 54 ft mentioned in the schedule. Ex.P.4 is the tax-paid receipt reveal that plaintiff has paid property tax from the year 2008 to 2016.
22. Ex.P.5 is the certified copy of the sale deed dated 25/6/2004 shows that this same defendant No.1 by name G.N.Venkatesh had alienated the same Site No.20 i.e., the portion of the property purchased by the plaintiff under the sale deed dated 2/12/2000 in favour of the defendant No.2 Smt.Anusuya.B.K for a sale consideration amount of Rs.61,000/-. On the same day under Ex.P.6, the defendant No.1 has also alienated the remaining Site No.21 in favour of defendant No.3 Dr.Panchakshari Prasanna B.K for sale consideration amount of Rs.61,000/-.
23. On 14/12/2012 the defendant No.2 had executed 19 O.S.No.3661/2016 a Registered Sale deed in respect of the Site No.21 i.e., portion of the plaint schedule property in favour of defendant No.4 for sale consideration amount of Rs.8,51,000/-. On the same day, the defendant No.3 had alienated the vacant site No.21 in favour of defendant No.4 under Ex.P.8 for the sale consideration amount of Rs.8,51,000/-. Therefore, the suit schedule property stood in the name of defendant No.4 on the basis of Ex.P.7 & Ex.P.8.
24. The defendant No.4 in turn sold the same suit schedule property in favour of defendant No.5 Srinivasan.K with respect of the Site No.21 for sale consideration amount of Rs.19,45,000/- under the sale deed dated 18/9/2015. On the same day, the defendant No.4 has also alienated the another site No.20 in favour of defendant No.6 under Ex.P.10. So, the title deeds of the suit schedule property changed in to the name of defendant No.5 & 6 under Ex.P.9 & Ex.P.10. Ex.P.11, Ex.P.1(a) & (b) are the photographs.
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O.S.No.3661/2016
25. To rebut the evidence of the plaintiff, except filing written statement of defendant No.2 to 4, none of the defendants have not stepped in to the witness box. More over, defendant No.5 & 6 neither filed written statement nor stepped in to the witness box. The defendant No.1 who is the original owner of the suit schedule property was placed exparte.
26. Only the advocate appearing for defendant No.2 to 4 have cross-examined the P.W.1. In the cross- examination, P.W.1 has stated that Site No.20 and 21 are belonging to him. But, he do not know the survey numbers of the 2 sites. He has further stated that he has purchased the converted land and he has got the conversion order. But, in the sale deed, there is no mention of the conversion order. He has also stated that the layout plan was not approved. He has denied the suggestion that till 25/6/2004 the defendant No.2 and 3 were in possession. He has admitted that defendant No.2 and 3 have sold the schedule property in 21 O.S.No.3661/2016 favour of defendant No.4. But, he denied that defendant No.4 was in possession of the suit schedule property. He also denied the suggestion that ever since the same, subsequent purchasers were in possession. He has further stated that no survey has been conducted but there is a difference of 334 sq.ft between his land and the defendant's land and he has not mentioned as to who are in possession of remaining 334 sq.ft.
27. On perusal of the evidence on record, the plaintiff has purchased the suit schedule property under a registered sale deed from the 1st defendant for valuable sale consideration. This sale deed under Ex.P.1 was duly registered before the Sub Registrar, Bangalore South Taluk on payment of proper duty and registration fee. The sale deed dated 25/6/2004 reveal that the same vendor of the plaintiff had executed 2 sale deeds in favour of defendant No.2 & 3 under Ex.P.5 & Ex.P.6. There is no explanation by the defendants as to how the defendant No.1 executed 2 more sale deeds on the 22 O.S.No.3661/2016 same suit schedule property in favour of defendant No.2 & 3 when he already executed a registered sale deed in favour of the plaintiff under Ex.P.1. Therefore, it is clear that defendant No.1 had no title to alienate the suit schedule property in favour of defendant No.2 & 3. Hence, the subsequent sale deed executed by defendant No.2 & 3 in favour of defendant No.4 to 6 is also without title and liable to be set-aside. The possession of the defendants over the suit schedule property is illegal. The plaint averments discloses that the sale transactions of the defendants is without the knowledge of plaintiff. The plaint also reveal that cause of action arose on the date of receiving the Caveat during the month of April 2016 issued by the defendant No.5. The plaintiff filed suit in the year 2016 that is within the time of limitation from the date of knowledge. Therefore, I answer Issue No.1 to 3 in the Affirmative and Issue No.5 in the Negative.
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O.S.No.3661/2016
28.ISSUE No.4:- In para No.16 of the written statement, the defendant No.2 to 4, it is contended that the suit is not properly valued and the court fee paid is insufficient. The plaintiff has not paid the court fee in respect of the prayer of sale deeds are void and illegal as such, she has to pay the court fee as described under the provisions of Karnataka Court Fee and Suit Valuation Act for the present market value of the suit schedule property.
29. On perusal of the plaint, no doubt, the plaintiff has sought for the relief of declaration of title, possession and also for declaration of the sale deeds executed by the defendant No.1 in favour of defendant No.2 & 3 and subsequent sale deeds executed by defendant No.2 & 3 with the defendant No.4 and also the subsequent sale deed executed by defendant No.4 in favour of defendant No.5 & 6 as void and not binding on the plaintiff.
30. Admittedly, the plaintiff is not a party to all the 24 O.S.No.3661/2016 sale deeds dated 25/6/2004, 14/12/2012 and 18/9/2015. The valuation slip annexed to the plaint dated 11/5/2016 reveal that the suit of the plaintiff for declaration and possession and value of the property valued at Rs.38,90,000/- and the court fee under section 24A of the Karnataka Court Fee and Suit Valuation Act and court fee of Rs.1,74,000/- is paid. A fresh valuation slip filed on 9/7/2019 reveal that total court fee is assessed at Rs.2,17,298/- in which a sum of Rs.1,87,438/- has been already paid and remaining amount of Rs.29,863/- is concerned, the plaintiff is ready to pay the same.
31. In a suit for declaration and possession, court fee has to be paid on the market value of the property or on Rs.1,000/- which ever is higher. Under Section 28, court fee has to be paid on one half of the market value of the property or Rs.1,000/- which ever is higher. In a suit for possession, under Section 6 of the Specific Reliefs Act, in other suits for possession, court fee has to be paid on the market value of the property or on 25 O.S.No.3661/2016 Rs.1,000/- which ever is higher.
32. In (2017) 11 SCC 852 between "J.Vasanthi and others v/s N.Ramani Kanthammal and others", the Hon'ble Apex Court held that "suit for declaration that the sale deeds were fabricated and hence, void - held, in suit for declaration for treating documents null and void, which basically amounts to seeking relief of cancellation of documents, and where original plaintif was party to such transaction, as in the instant case, the court fee is to be computed on value of subject-matter of suit i.e., under section 40 - impugned judgment affirming order of trial court rejecting defendant's application praying for directive to plaintif to pay court fee under section 40, unsustainable - trial court to grant 3 months time to plaintif to pay requisite court fees. "
33. In a suit for declaration and injunction, fee has to be paid on one half of the market value or Rs.1,000/-
which ever is higher. Under Section 24(d) whether the 26 O.S.No.3661/2016 subject matter of the suit is capable or not, fee shall be paid on the amount at which the relief is valued in the plaint.
34. In a suit for cancellation, the court fee has to be paid on the amount of the decree for which it is passed. , if the suit is for cancellation of the decree for money. If the suit is for cancellation of decree of property, then, court fee has to be paid on the value of the property. Similarly, in the position with regard to the suit for cancellation of document. The value of the property in S.38(1) of the Karnataka Court Fee and Suit Valuation Act must be under stood as the market value of the property and not the amount of consideration mentioned in the deed sought to be cancelled and therefore, in a suit for cancellation of gift deed, the plaintiff is justified in valuing the suit on the basis of market value of the property which is the subject-matter of the suit.27
O.S.No.3661/2016
35. Section 38 of the Karnataka Court Fee and Suit Valuation Act deals with payment of court fee in a suit for cancellation of decree etc. (1) In a suit for cancellation of a decree for money or other property having a money value or other document which purports or operates to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit and such value shall be deemed to be:-
If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed.
If a part of the decree or the other document was sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or the other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of 28 O.S.No.3661/2016 such a property or share or on the amount of the decree which ever is less.
36. On 26/9/2018 the advocate for defendant No.2 to 4 filed a memo stating that as per the Government Guide lines value, as on the date of filing of the suit, as per S.24(A) of the Karnataka Court Fee & Suit Valuation Act, the property value is Rs.18,300/- per sq.meter. The measurement of the schedule property is 255.94 sq.meters and hence, the value of the suit schedule property was Rs.57,58,650/- and hence, he prayed to pass necessary orders on Issue No.4.
37. The Hon'ble High Court of Karnataka in AIR 2009 KAR 47 between "Venkatesh R. Desai v/s Smt.Pushpa Hosmani", it was held that "the issue regarding court fee need not be a preliminary issue and it can be adjudicated along with main suit.
38. On 6/10/2018 the advocate appearing for the 29 O.S.No.3661/2016 plaintiff filed a copy of the Gazette Notification showing the market value dated 30/10/2014 that reveal the valuation of the property at Parappana Agrahara is Rs.1,600/- for every square feet. On 9/7/2019 he filed a fresh valuation slip showing the market value of the property and payment of court fee of Rs.2,17,298/-. He also filed a memo dated 23/4/2019 stating that as per market value of the property filed by the defendant is Rs.57,58,650/-. Therefore, the calculation of said amount , the court fee is Rs.2,17,298/- and the plaintiff has already filed the court fee of Rs.1,87,435/- at the time of filing of the suit and he has sought permission to the plaintiff to pay the deficit court fee of Rs.29,863/-. The records reveal that on 24/7/2019, the plaintiff has paid the deficit court fee of Rs.29,863/-. Therefore, the court fee paid by the plaintiff is sufficient. Hence, I answer Issue No.4 in the Affirmative.
39. ISSUE No.6:- The defendant No.2 to 4 in their written statement contended that the suit of the plaintiff 30 O.S.No.3661/2016 lacks cause of action. Except filing written statement, they have not adduced any evidence to show how the plaint lacks cause of action. The plaintiff had purchased the suit schedule property under the registered sale deed on 7/12/2000 from the defendant No.1. Therefore, the title of the suit schedule property vested with the plaintiff. She never executed any sale deed in favour of defendants. But, her vendor without having any title had again executed the sale deed in favour of the defendant No.2 & 3 which is the void sale deed. The subsequent sale deed executed by defendant No.2 & 3 in favour of defendant No.4 and also the sale deed executed by defendant No.4 in favour of defendant No.5 & 6 are without having any title and those sale deeds are void. The plaintiff has got the cause of action to file a suit for declaration and possession. During the pendency of the suit, the plaintiff is reported dead. Her legal representatives are brought as her LR No.1(a) to
(c). They being successors of the deceased plaintiff are 31 O.S.No.3661/2016 entitled for the declaration of title and possession of the suit schedule property. Hence, I answer the Issue No.6 in the Negative.
40. ISSUE No.7:- In view of my findings on Issue No.1 to 6, I pass the following:-
ORDER Suit of the plaintiffs is decreed with costs. It is hereby declared that plaintiffs are the absolute owner of the suit schedule property.
The defendant No.5 & 6 shall deliver the vacant possession of the suit schedule property in favour of the plaintiff within three months.
It is further declared that the sale deed executed by defendant No.1 in favour of defendant No.2 & 3 vide sale deed No.7329/2004-2005 and 7322/2004-2005 dated 25/6/2004, subsequent sale deed between the defendant No.2 & 3 with defendant No.4 vide sale deed No.7737/2012-2013 and 7735/2012-2013 dated 14/12/2012 and the subsequent sale deed between the defendant No.4 with the defendant No.5 & 6 vide sale deed No.1569/2015-2016 and 1568/2015-2016 dated 18/9/2015 are null and void and hereby cancelled.32
O.S.No.3661/2016 Send a copy of the decree to the concerned Sub- Registrars who registered the above sale deeds for making necessary note on the copy of the instrument contained in their books the fact of its cancellation as per Section 31(2) of the Specific Reliefs Act, 1963.
Office is directed to draw decree accordingly. (Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 9th day of March 2021.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Robert
b) Defendants' side :
- NIL -33
O.S.No.3661/2016 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Original sale deed dated
7/12/2000
Ex.P.2 Original demand register extract
issued by Parappana Agrahara
Village Panchayath
Ex.P.3 Property Register Extract in
Form-B
Ex.P.4 Tax-paid receipt for the eyar
2008 to 2016
Ex.P.5 Certified copy of the sale deed
dated 25/6/2004
Ex.P.6 Certified copy of the sale deed
dated 25/6/2004
Ex.P.7 Certified copy of the sale deed
dated 14/12/2012
Ex.P.8 Certified copy of the sale deed
dated 14/12/2012
Ex.P.9 Certified copy of the sale deed
dated 18/9/2015
Ex.P.10 Certified copy of the sale deed
dated 18/9/2015
Ex.P.11, 3 photographs
Ex.P.11(a) &
Ex.P.11(b)
34
O.S.No.3661/2016
(b) Defendants' side : -
- NIL -
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-
35
O.S.No.3661/2016 Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit of the plaintiffs is decreed with costs. It is hereby declared that plaintiffs are the absolute owner of the suit schedule property.
The defendant No.5 & 6 shall deliver the vacant possession of the suit schedule property in favour of the plaintiff within three months.
It is further declared that the sale deed executed by defendant No.1 in favour of defendant No.2 & 3 vide sale deed No.7329/2004-2005 and 7322/2004-2005 dated 25/6/2004, subsequent sale deed between the defendant No.2 & 3 with defendant No.4 vide sale deed No.7737/2012-2013 and 7735/2012-2013 dated 14/12/2012 and the subsequent sale deed between the defendant No.4 with the defendant No.5 & 6 vide sale deed No.1569/2015-2016 and 1568/2015-2016 dated 18/9/2015 are null and void and hereby cancelled.
Send a copy of the decree to the concerned Sub-Registrars who registered the above sale deeds for making necessary note on the copy of the instrument contained in their books the fact of its cancellation as per Section 31(2) of the Specific Reliefs Act, 1963.
Office is directed to draw decree accordingly.
XIX ACCJ, Bangalore.