Bangalore District Court
Of The vs Is Making Hectic Attempts To Alienate Or on 21 December, 2018
IN THE COURT OF IX ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 21st day of December 2018
Present : Smt. M.H.Shantha, M.A., LL.B.,
IX Addl. C.C & S.J, Bangalore.
O.S. NO.2510/2012
Plaintif : 1. Sri.K.Gururaj
since dead by Lrs
1a. Smt.Pramila Gururaj,
aged about 67 years,
w/o. Late Gururaj, r/at No.6,
4th cross,
Venkatarangapuram,
Palace Guttahalli,
Bangalore-560003.
1b. Smt.Jayanthi Shivaprasad,
aged about 53 years,
D/o. Late K.Gururaj,
r/at Magadi Main Road,
K.P.Agrahara,
Bangalore-560023.
1c. Smt.G.Rekha,
aged about 50 years,
D/o. Late K.Gururaj,
r/at No.16, 'Amrithavarshini',
2nd cross,
Bannimantpa 'A' layout,
Mysore-5700015.
2. Sri.G.Govind,
aged about 41 years,
s/o. K.Gururaj, r/at No.6,
4th cross,
Venkatarangapuram,
Palace Guttahalli,
Bangalore-560003.
O.S.NO.2510/2012
2
[By Sri.M.Prabhakar,
Advocate]
- Vs -
Defendant : 1. Sri.S.K.Paramesh, Advocate,
aged about 51 years,
s/o. Sabu, r/at No.3,
6th cross, Central Street,
Kumara Park West,
Bangalore-560020.
2. Sri.Krishan Das Vaishnavi,
aged about 40 years,
s/o. Vagataram Ji,
r/at No.7/1, 1st floor,
3rd cross, Anchepet,
Bangalore-560003.
3. The Sub-Registrar,
Gandhinagar, K.G.Road,
Bangalore-560009.
(By Sri.Ganesh N.M. for D-1,
Sri.Naveen Chandra Shetty
(ADGP) for D-3 and
D-2 placed exparte)
Date of institution
of the suit : 05.06.2012
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration and
Injunction
Date of the commencement
of recording of the evidence: 23.10.2013
Date on which the
Judgment was pronounced : 21.12.2018
O.S.NO.2510/2012
3
Year/s Month/s Day/s
Total Duration -06- -06- -16-
(M.H.Shantha)
IX Addl. City Civil & Sessions Judge,
Bangalore.
-------
JUDGMENT
This suit is filed by plaintifs against the defendants for the relief of declaration and for permanent injunction, declaring that the plaintif No.1 is the owner of the suit schedule property and sale deed dated 28.01.2011 alleged to have been executed by the defendant No.2 in favour of defendant No.1 is null and void and not binding on the plaintifs and for permanent injunction and such other relief and for costs.
2. The case of the plaintifs in brief is that, the 1st plaintif is the absolute owner of the property bearing No.2, PID No.77-87-22, situated at Central Street, Kumara Park West, Bangalore, measuring East to West 18 feet and North to South 48 feet totally measuring 864 sq. feet and 10 x 6 feet and totally measuring 60 sq. feet (864 + 60 = 924) together with building thereon consisting of Ground floor, first floor and second floor with amenities. The defendant No.1 is a O.S.NO.2510/2012 4 tenant under them in respect of the 1 st floor portion of the suit schedule property for a period of 5 years by virtue of lease agreements dated 02.11.2001 and 31.12.2004 respectively. During the subsistence of the lease agreements, the defendant No.1 and his wife Uma approached the plaintifs for purchase of the suit schedule property for a total sale consideration of Rs.25,00,000/- as the defendant No.1 is tenant in the same building and running advocate office in the suit schedule property and they have agreed for the said sale consideration and entered into agreement of sale dated 03.05.2006 and on the same day the 1 st defendant and his wife paid advance sale consideration amount of Rs.5,00,000/- to the plaintifs and they have agreed to get the sale deed registered in their names within 6 months from the date of the said agreement of sale. Further the plaintifs have stated that, the original agreement of lease dated 02.11.2001 and 30.12.2004 and the agreement of sale dated 03.05.2006 are in the custody of defendant No.1. As per the terms and conditions of the agreement of sale dated 03.05.2006 the 1st defendant and his wife agreed to perform their part of contract and get the sale deed registered in respect of the suit schedule property in their favour within 6 months from the date of said agreement. Further the plaintifs have stated that, the defendant O.S.NO.2510/2012 5 No.1 and his wife failed to perform their part of contract in respect of the said sale inspite of several requests orally made by the plaintifs. Further the plaintifs have stated that, after the expiry of lease agreement dated 02.11.2001 and 30.12.2004 got issued the legal notice dated 04.01.2010 to the defendant No.1 by terminating the said tenancy through their counsel to vacate and deliver the vacant possession of the 1st floor portion of the suit schedule property in favour of the plaintifs. On service of the legal notice dated 04.01.2010, the 1 st defendant and his wife Uma filed a suit against the plaintifs on the file of the City Civil Judge, Bangalore, in O.S.No.546/2010 for the relief of perpetual injunction without enforcing the agreement of sale dated 03.05.2006 and the same is pending adjudication. Further the plaintifs have stated that, the 1 st defendant failed to vacate and deliver the vacant possession of the 1st floor portion of the schedule property involved in the agreement of lease dated 02.11.2001 and 30.12.2004 inspite of the legal notice served on the 1 st defendant, the plaintifs were constrained to file suits against the 1st defendant for the relief of ejectment on the file of the City Civil Judge, Bangalore in O.S.No.1636/2010 and O.S.No.1637/2010 and the said suits are pending adjudication.
3. Further the plaintifs have stated that, during the O.S.NO.2510/2012 6 pendency of the said proceedings between the plaintifs and the 1st defendant, the 1st defendant with a malafide intention and oblique motive in order to knock of the valuable property of the plaintifs in collusion with the 2nd defendant got created a document in the name of the 2nd defendant styled as GPA dated 04.06.2006 alleged to have been executed by the plaintifs in favour of the 2nd defendant by forging the signatures of the plaintifs and on the strength of the alleged GPA dated 04.06.2006 the 1st defendant without the knowledge of the plaintifs got registered the alleged sale deed dated 28.01.2011 in respect of the suit schedule property in his favour. The 1 st plaintif came to know about the alleged GPA dated 04.06.2006 and the alleged registered sale deed dated 28.01.2011 got created by the defendant No.1 in collusion with defendant No.2 when the 1 st plaintif had been to the BBMP office for paying tax in respect of the suit schedule property on 04.04.2011. Further the plaintifs have stated that, immediately the 1 st plaintif gave a representation to the Revenue Officer, BBMP not to transfer the khatha in respect of the suit schedule property in favour of the defendant No.1 on the strength of the alleged sale deed dated 28.01.2011 and approached the jurisdictional Sheshadripuram Police on 05.04.2011 and lodged a police complaint against the O.S.NO.2510/2012 7 defendant No.1 and 2. Further the plaintifs have stated that, the Sheshadripuram Police have registered a criminal case against the defendants No.1 and 2 in Cr.No.45/2011 for the ofence punishable under section 465, 468, 471, 420 read with section 34 of IPC and the same is pending adjudication. At no point of time the plaintifs have executed any GPA in respect of the suit schedule property in favour of any persons that too the alleged GPA dated 04.06.2006 in favour of the 2 nd defendant. Further the plaintifs have stated that, the 1st defendant with a dishonest intention and oblique motive in order to grab the valuable petitioner of the plaintifs in collusion with the 2nd defendant during pendency of the said suits got created the alleged GPA dated 04.06.2006 and alleged sale deed dated 28.01.2011 in respect of the suit schedule property. On 01.03.2012 the plaintifs reliably learnt through the neighbours and real estate agents that based on the alleged sale deed dated 28.01.2011 now the 1 st defendant is making hectic attempts to alienate or further encumber the suit schedule property in favour of others. Hence, this suit.
4. In pursuance to the summons the defendants No.1 and 3 have appeared through their counsel. Inspite of service of summons to the defendant No.2 he has failed to appear before the court and he is placed exparte.
O.S.NO.2510/2012 8 The defendant No.3 has not filed written statement. In the written statement the defendant No.1 has contended that, the suit is bad for non-joinder and mis- joinder of the parties. The plaintifs are not the owners of the suit schedule property and the plaintifs have no manner of right, title or interest over the suit schedule property, the plaintifs are not in possession of the suit schedule property. The 1st plaintif is not the owner of the suit schedule property. The plaintifs have no manner of right, title or interest over the suit schedule property. This defendant was the tenant under the plaintif in respect of the 1 st floor portion of the suit schedule property for a period of 5 years by virtue of lease agreements. During the subsistence of the said lease period the plaintifs have ofered to sell the suit schedule property to the above defendant for a sale consideration amount of Rs.25,00,000/-. Further the defendant No.1 has contended that, he has agreed to purchase the same for the said sale consideration amount and as such the plaintifs have entered an agreement of sale dated 03.05.2006, in respect of the suit schedule property, with this defendant and his wife, Uma by receiving an advance amount. The defendant has agreed to perform his part of the contract and agreed to get the sale deed registered in respect of the suit schedule property in their favour, by paying O.S.NO.2510/2012 9 consideration amount, but the plaintifs have postponed the same by giving one or the other reasons. Further the defendant No.1 has contended that, the plaintifs have later threatened to dispossess the defendant from the suit schedule property, hence the defendant and his wife have filed a suit in O.S.No.546/2010, before the City Civil Court, Bangalore against the plaintifs for seeking injunction and the said suit is still pending for consideration. Further the defendant No.1 has contended that, the plaintifs have immediately after receipt of the notice issued in O.S.No.546/2010 filed false suit in O.S.No.1636/2010 and O.S.No.1637/2010 before the Hon'ble City Civil Court, Bangalore for seeking eviction of the defendant from the suit schedule property and the said suit is pending for consideration. Further the defendant No.1 has contended that, he and his wife have requested the plaintifs to register the absolute sale deed in respect of the suit schedule property by receiving balance sale consideration amount, but the plaintifs have postponed the same by giving one or the other reasons. The plaintifs have executed a GPA in respect of the suit schedule property in favour of one Kishan Das, the defendant No.2 in the suit. Further the defendant No.1 has contended that, he is in possession of the suit schedule property by virtue of agreement of sale, the O.S.NO.2510/2012 10 said Kishan Das has approached him to get the said property registered in his name, by paying consideration amount. The defendant has paid the consideration amount to the GPA holder of the plaintifs and got registered absolute sale deed on 28.01.2011. Further the defendant No.1 has contended that, the plaintifs have even after registration of absolute sale deed, in respect of the suit schedule property, demanded an additional amount from him, but the he has refused to pay any additional amount to them and therefore the plaintifs have by creating a false story, filed the suit as well as a criminal case in Cr.No.45/2011 before the 8th Addl. CMM, Bangalore and it is still pending. There is no cause of action in the suit and the plaintifs have not paid proper court fees. Further the defendant No.1 has contended that, he has paid entire sale consideration amount to the plaintifs and got it registered the absolute sale deed. Hence the defendant No.1 pray for dismissal of the suit filed by the plaintifs.
5. On the above pleadings of the parties, my predecessor-in-office has framed the following issues:
1. Whether the plaintifs that 1st plaintif is the absolute owner of the schedule property?
2. Do they prove that sale deed dated O.S.NO.2510/2012 11 28.01.2011 alleged to have been executed by 2nd defendant in favour of 1st defendant is null and void and not binding on them?
3. Do they prove the alleged obstructions of the defendants in respect of the schedule property as pleaded?
4. Do they entitle for the relief sought for?
5. What order or decree?
6. In support of the case of the plaintifs, the 1st plaintif has got examined himself as P.W.1 and the plaintif has produced 22 documents at Ex.P-1 to Ex.P-
22. On the other hand, the defendants have neither examined nor marked the documents and taken as closed.
7. Heard the arguments of the learned counsel for the plaintifs. No arguments addressed by the defendants side. After hearing the arguments and considering the oral and documentary evidence on record, my findings on the above issues are as here under :
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
O.S.NO.2510/2012
12
Issue No.5 : As per final order
for the following :
REASONS
8. ISSUE No.1 TO 3 : As these issues are
interconnected with each other, I have taken up together for discussion.
In support of the case of the plaintifs, the plaintif No.1 has got examined himself as P.W.1. P.W.1 in his evidence has deposed that, he is the absolute owner of the suit schedule property. Further P.W.1 has deposed that, the defendant No.1 is the tenant under him in respect of 1st floor portion of the suit schedule property as per the lease agreements dated 02.11.2001 and 30.12.2004 for a period of 5 years. Further P.W.1 has deposed that, defendant No.1 and his wife Uma have entered into an agreement of sale with him on 03.05.2006 and the 1st defendant and his wife Uma have agreed to purchase the suit schedule property in their favour for a sum of Rs.25,00,000/- and he has received Rs.5,00,000/- towards advance sale consideration amount from the 1st defendant and his wife and agreed to execute the sale deed within 6 months from the date of execution of agreement of sale. Further P.W.1 has deposed that, the defendant No.1 and his wife have agreed to pay the balance sale consideration amount at the time of registration of the O.S.NO.2510/2012 13 sale deed. Further P.W.1 has deposed that, he has got issued legal notice to the defendant No.1 on 04.01.2010 by terminating the tenancy through his counsel to vacate and deliver the vacant possession of the 1st floor portion of the suit schedule property in his favour. Further P.W.1 has deposed that, thereafter the 1st defendant and his Uma have filed a suit against him and the plaintif No.2 on the file of CCH-40 Bangalore in O.S.No.546/2010 for the relief of permanent injunction and the said suit is pending before the said court. Further P.W.1 has deposed that, he has filed a suit against the defendant No.1 for ejectment in respect of the suit schedule property in O.S.No.1636/2010, O.S.No.1637/2010 on the file of CCH-23 and the said suits are pending before the said court. Further P.W.1 has deposed that, he has not executed any general power of attorney on 04.06.2006 in favour of defendant No.2. Further P.W.1 has deposed that, the defendant No.1 has created the general power of attorney dated 04.06.2006 in the name of defendant No.2 by forging his signature and also the signature of the plaintif No.2. Further P.W.1 has deposed that, on the strength of the said general power of attorney dated 04.06.2006 the defendant No.1 without the knowledge of the plaintifs got registered the sale deed in respect of the suit schedule property in his name from the defendant No.2 O.S.NO.2510/2012 14 in the 3rd defendant Sub-Registrar office. Further P.W.1 has deposed that, on 04.01.2011 he came to know that the 2nd defendant has executed the registered sale deed on 28.01.2011 in respect of the suit schedule property on the strength of alleged General Power of Attorney and thereafter he lodged the complaint before the jurisdictional Sheshadripuram Police Station. Further P.W.1 has deposed that, the Sheshadripuram police have registered the criminal case against the defendants No.1 and 2 in Cr.No.45/2011 for the ofence punishable under section 465, 468, 471, 420 r/w section 34 of IPC and the said police have filed charge sheet against the defendants No.1 and 2 and the said criminal case is pending against the defendants No.1 and 2. The plaintifs have produced certified copy of the khatha extract, khatha certificate, certified copy of plaint in O.S.No.1637/2010, copy of the GPA, certified copy of sale deed, certified copy of complaint, FIR, certified copy of charge sheet, certified copy of remand application, certified copy of judgment and decree O.S.No.1636/2010 and O.S.No.1637/2010, encumbrance certificates, certified copy of order sheet in E.P.76/2015, certified copy of application in E.P.No.76/2015, certified copy of delivery warrant, possession receipts, certified copy of spot mahazars, certified copy of order sheet in E.P.77/2015, certified copy of delivery warrant and the O.S.NO.2510/2012 15 same are marked at Ex.P-1 to Ex.P-22.
9. P.W.1 in his cross examination has deposed that, he has entered into an agreement of sale with the 1st defendant and his wife Uma on 03.05.2006 and agreed to sell the suit schedule property in favour of defendant No.1 and his wife for Rs.25,00,000/- and received Rs.5,00,000/- towards advance sale consideration amount. Further P.W.1 in his cross examination has deposed that, at the time of execution of agreement of sale he has handed over possession certificate, Will and tax paid receipts to the defendant No.1. Further P.W.1 in his cross examination has deposed that, the khatha of the suit schedule property is standing in his name. Further P.W.1 in his cross examination has denied that, he has not executed General Power of Attorney in favour of the 2nd defendant. Further P.W.1 in his cross examination has denied that, the 2nd defendant has received Rs.16,00,000/- from the defendant No.1 in the capacity of his power of attorney holder. Further P.W.1 in his cross examination has denied that, he is not the owner of the suit schedule property. Further P.W.1 in his cross examination has denied that, the defendant No.2 has sold the suit schedule property in favour of defendant No.1 under the registered sale deed dated 28.01.2011 on the basis of GPA executed by him as per Ex.P-6. It is the case and contention of the defendant O.S.NO.2510/2012 16 No.1 that, he has purchased the suit schedule property from the plaintifs through their power of attorney holder Krishan Das Vishnavi the defendant No.2 under the registered sale deed dated 28.01.2011. The plaintifs have specifically denied that, they have not executed general power of attorney in favour of defendant No.2. Though the defendant No.1 has filed the written statement he has not chosen to adduce his side evidence and thereby contest the suit. The defendant has not adduced any oral evidence and not produced any documentary evidence in order to prove his contention. The 1st defendant has not produced the original un-registered general power of attorney dated 04.06.2006 said to have been executed by the plaintifs in favour of defendant No.2 in respect of the suit schedule property and any other documents to show that the plaintifs have executed the General power of attoreny in favour of 2nd defendant in respect of the suit schedule property. Therefore, the contention of the defendant No.1 that, he is the owner of the suit schedule property on the basis of sale deed dated 28.01.2011 executed by the plaintifs through his power of attorney holder defendant No.2 cannot be accepted. Therefore, the defendant No.2 had no right to sell the suit schedule property in favour of defendant No.2 under the registered sale deed dated 28.01.2011 O.S.NO.2510/2012 17 Therefore, from the oral and documentary evidence on record, it is clear that the plaintifs are the absolute owners of the suit schedule property. Further it is clear that, the deceased plaintif No.1 Gururaju the father of the plaintif No.2 and the plaintif No.2 have not executed general power of attorney dated 04.06.2006 in favour of defendant No.2. Further it is clear that defendant No.2 had no right to sell the suit schedule property in favour of 1st defendant under the registered sale deed on 28.01.2011. Further it is clear that the plaintifs are in possession and enjoyment of the suit schedule property. During the pendency of the suit, the 1st plaintif Gururaj has passed away, thereafter his legal heirs plaintif No.1(a) to 1(c) were brought on record.
From the oral and documentary evidence on record, it is clear that, the plaintifs have clearly proved that, they are the absolute owner of the suit schedule property. Further the plaintifs have clearly proved that the deceased Gururaj plaintif and his son plaintif No.2 have not executed General Power of attorney in favour of defendant No.2. Further plaintifs have clearly proved that the defendant No.2 had no right to sell the suit schedule property in favour of defendant No.1 under the registered sale deed dated 28.01.2011. Further the plaintifs have clearly prove that the sale O.S.NO.2510/2012 18 deed dated 28.01.2011 executed by the defendant No.2 in favour of defendant No.1 is null and void and the same is not binding on them. Further, the plaintifs have clearly proved the obstructions caused by the defendants in respect of the suit schedule property as contended by them. Therefore, the plaintifs have proved the issue No.1 to 3. Accordingly, I answer issue No.1 to 3 are in the AFFIRMATIVE.
10. ISSUE NO.4 : As discussed herein above, the plaintifs have proved that, they are the absolute owners of the suit schedule property and they have not executed any general power of attorney in favour of defendant No.2 and they have not sold the suit schedule property under registered sale deed dated 28.01.2011 in favour of defendant No.1 through defendant No.2 by executing general power of attorney. Therefore, the plaintifs are entitled for the relief of declaration as sought for in this suit. Accordingly, the plaintifs have proved the issue No.4. Hence, I answer issue No.4 in the AFFIRMATIVE.
11. ISSUE No.5 : In view of my findings on issue No.1 to 4 and for the reasons stated therein, this suit filed by the plaintifs deserves to be decreed. In the result, I proceed to pass the following :
O.S.NO.2510/2012 19 ORDER This suit filed by the plaintif is hereby decreed.
It is decreed that the plaintifs are the absolute owners of the suit schedule property.
Further it is declared that, the sale deed dated 28.01.2011 executed by the defendant No.2 in favour of defendant No.1 is null and void and the same is not binding on the plaintifs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on the Computer, corrected and then pronounced by me in the open court, on this the 21st day of December 2018).
(M.H.Shantha) IX Addl. City Civil & Sessions Judge, Bangalore.
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A N N E X U R E List of witnesses examined for plaintifs :
P.W.1 K.Gururaj List of documents exhibited for plaintifs :
Ex.P.1 Copy of khatha
Ex.P.2 Certified copy of khatha
O.S.NO.2510/2012
20
Ex.P.3 Copy of plaint in O.S.No.546/2010
Ex.P.4 Certified copy of plaint in O.S.No.1636/2010
Ex.P.5 Certified copy of plaint in O.S.No.1637/2010
Ex.P.6 Certified copy of GPA
Ex.P.7 Certified copy of sale deed
Ex.P.8 Certified copy of the complaint
Ex.P.9 FIR
Ex.P.10 Certified copy of order in Cr.No.45/2011 Ex.P.11 Certified copy of remand application Ex.P.12 Certified copy of judgment and decree in O.S.No.1636/2010 Ex.P.13 Certified copy of judgment and decree in O.S.No.1637/2010 Ex.P.14 Certified copy of order in EP No.76/2015 Ex.P.15 Certified copy of application in EP No.76/2015 Ex.P.16 Certified copy of delivery warrant Ex.P.17 Certified copy of spot mahazar Ex.P.18 Certified copy of order in EP No.77/2015 Ex.P.19 Certified copy of application in EP No.77/2015 Ex.P.20 Certified copy of delivery warrant Ex.P.21 Certified copy of spot mahazar Ex.P.22 Certified copy of possession receipt List of witnesses examined for defendant :
- NIL -
O.S.NO.2510/2012 21 List of documents exhibited for defendant :
- NIL -
IX Addl. City Civil & Sessions Judge, Bangalore.