Bangalore District Court
Susheelamma T.V vs Surendrababu R on 18 December, 2024
KABC010121472006
IN THE COURT OF THE XLI ADDL.CITY CIVIL
AND SESSIONS JUDGE : AT BANGALORE
[CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI, B.A. LL.B. (Hons.), LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 18th Day of December 2024
O.S. NO.1914/2006
PLAINTIFFS : Smt.T.V.Susheelamma
D/o Late V.Venkatappa
W/o D.Chikkanna
Aged 70 years
R/o Ashma Nilaya, 4th Cross
Bannur Road, Marigowda Extension
Mandya City
Mandya-571 401.
Since dead by her LRs :
a) Dr.Gunashekhar.C
S/o Late.D.Chikkanna
Aged about 57 years
R/at 4th Cross, 50 feet Road
Marigowda Layout
Mandya-571 401
O.S No.1914/2006
2
b) Sri.Vidyashekar.C
S/o Late.D.Chikkanna
Aged about 52 years
R/at No.2363, 3rd Cross
Gandhinagar
Mandya-571 401.
(By Sri. G.M., Advocate)
V/s.
DEFENDANT: 1. R.K.Surendrababu
S/o R.Krishnaiah Chetty
Aged about 46 years
R/o No.91/6, Nagavarapalya
Old Madras Road
Bangalore-560 093
2. C.Ramaiah
S/o Chikka Maddaiah
Aged about 50 years
R/o No.4/9, Nagawara
Bangalore-560 045.
(D1 - By Sri.S.M.R., Advocate
D2 - Exparte)
Date of Institution of the Suit: 07.03.2006
Nature of the suit
(Suit on Pronote, suit for Declaration
declaration & possession, suit &
for injunction) Injunction
O.S No.1914/2006
3
Date of commencement of 18.11.2009
recording of evidence:
Date on which the Judgment 18.12.2024
was pronounced:
Total Duration: Year/s Month/s Day/s
18 09 11
JUDGMENT
The suit is filed against the defendants for the relief of declaration that the plaintiff is absolute, exclusive and lawful owner in possession of suit property, declaring that the alleged General Power of Attorney dated 25.11.2000 alleged to have executed by plaintiff in favour of 2nd defendant concerning the suit property is null and void and not a genuine document and not binding on the plaintiff, consequently, the alleged sale deed dated 19.01.2001 alleged to have been executed by 2nd defendant in favour of 1st defendant concerning the suit property is also null and void and not a genuine document and also not binding on the plaintiff, in any manner, for permanent injunction restraining the defendants, or anybody on their behalf O.S No.1914/2006 4 from causing any kind of interference or obstruction to the plaintiff's peaceful possession and enjoyment of suit property, with costs.
2. The brief facts of the case are as under:
The plaintiff is the absolute, lawful and exclusive owner in possession of the property bearing No.11, situated at 4th Main Road, Tata Silk Farm,Corporation Division NO.52, Bangalore measuring East-West: 40 feet on the southern side and 30 feet on the northern side, north-south: 67 feet on the western side and 73 feet on the eastern side as per the boundaries mentioned in the schedule (herein after 'suit property' for short).
It is the further case of the plaintiffs that earlier there was an old out house which was in dilapidated condition in a portion of the suit property and subsequently it collapsed.
O.S No.1914/2006 5 The plaintiff enquired the right, title and lawful possession of the suit property by virtue of registered partition deed dated 16.07.1959, katha of the suit property is standing in the name of plaintiff and she has been paying taxes to the concerned authorities and the plaintiff is in lawful possession and except the plaintiff no other persons have got right, title or interest over the suit schedule property. Being the owner in lawful possession of the suit schedule property, the plaintiff entered into an agreement of sale with the 1st defendant dated 12.04.1996. The possession of the property was not delivered under the said agreement and the 1st defendant had failed to perform his part of the agreement. But the said agreement expired and became unenforceable. However, the 1st defendant concealing the material facts and by pleading that he is in possession of the property instituted O.S.No. 8852/1997 seeking the relief of permanent injunction O.S No.1914/2006 6 on 02.12.1997 against the plaintiff. The said suit was dismissed at the instance of the 1st defendant on 09.01.2006.
It is further submitted by the plaintiff that the defendants have no manner of right, title or interest over the suit schedule property or any portion of it. When the 1st defendant attempted to knock off the suit schedule property by resorting to illegal means failed, the 1st defendant in collusion with the 2nd defendant forged the signatures of the plaintiff fraudulently and concocted the a power of attorney dated 25.11.2000 purported to have been executed by the plaintiff in favour of the 2nd defendant.
It is the further case of the plaintiff that her husband was hale and healthy and he is an Advocate by profession. The plaintiff was well enough to maintain the suit property by herself. In the said circumstances the plaintiff had no necessity to execute any power of attorney in favour of the 2nd defendant, who is utter stranger to the family of the O.S No.1914/2006 7 plaintiff. The alleged power of attorney is an un registered document and the said is void ab-initiao.
By virtue of the fabricated and forged GPA, the defendants in collusion with each other have created nominal registered sale deed dated 09.01.2001 with a malafide intention to knock off the suit schedule property and to make an unlawful gain and as such the sale deed is not genuine and not binding on the plaintiff.
It is further submitted in the plaint that the price shown in the sale deed is grossly inadequate and the same price is shown as Rs.4,10,000/-, when the market value of the said property is more than ten times of that amount. Therefore, neither the GPA nor the sale deed executed in favour of the defendants are valid and genuine documents.
It is further contended by the plaintiff that the alleged sale deed is purported to have been executed on behalf of plaintiff's two sons, who have not signed the sale deed or the alleged GPA. Therefore, no claim can be asserted on O.S No.1914/2006 8 the basis of such documents. The description of the property and the claim of the plaintiff's second son are also wrongly mentioned in the alleged sale deed. In this regard, the above suit is filed.
3. Pursuant to suit summons, the defendant No.2 did not appear before the court, and hence, he is placed exparte.
Whereas, the defendant No.1 appeared before the Court and contested the suit claim by filing his written statement.
In the written-statement the defendant No.1 has admitted that the plaintiff was the absolute owner of the suit property and had entered into the agreement of sale on 12.04.1996 for Rs.4,10,000/-. The 1st defendant has denied that the said agreement stood cancelled.
It is further averred that the 1st defendant has filed O.S.No. 8852/1997 before CCH-15 and obtained interim O.S No.1914/2006 9 order against the plaintiff restraining her from alienating the suit schedule property.
It is further contended that the plaintiff has received Rs.50,000/- after the expiry of the term fixed under the contract and as such, the validity of the document continued as time was not the essence of the contract.
The 1st defendant has denied that he has created a bogus power of attorney and got executed the registered sale deed with the help of defendant No.2 on 19.01.2001. The plaint averment that the sale deed is not genuine document is vehemently denied. Similarly, the averment with reference to the GPA that the said document is null and void is also denied. The defendant has denied that on 18.02.2006 he has illegally attempted to trespass into the suit schedule property and dug foundation on the portion of the land.
Apart from the above grounds, the defendant No.1 has urged the following contentions:
O.S No.1914/2006 10
1. The suit is barred by law of limitation.
2. It is contended in para No.13 of the written-statement that the 1st defendant has deposited Rs.3,50,000/- at the time of filing of the suit on 02.12.1997, being the balance sale consideration amount. But the Demand Drafts were taken back as the suit was only for injunction. Thereafter, the application for amendment was filed to convert the suit to one for specific performance of contract. During the pendency of the application, the plaintiff wrote a letter dated 16.11.2000 to the purchaser i.e. 1st defendant that she was ready to settle the matter by executing necessary sale deed through her relative one D. Ramaiah, to whom she would give GPA to do needful on her behalf.
3. It is further averred that on 25.11.2000 the plaintiff had executed the general power of attorney in favour of the second defendant and on 19.01.2001, the 2 nd defendant on the basis of the GPA executed sale deed in favour of the 1st defendant. The 1st defendant did not get the original O.S No.1914/2006 11 sale deed till he paid the deficit stamp duty in the Office of the Sub-Registrar, Jayanagar, Bengaluru on 24.11.2004 and thereafter, got the katha of the property transferred to his name and paid up to date taxes and therefore, the first defendant has become the owner of the property and hence, sought to dismiss the suit by imposing compensatory cost of Rs.50,000/- under Section 35(A) of C.P.C.
4. On the above pleadings of the parties, the following issues have been framed:
ISSUES
1. Whether plaintiff proves that she is absolute owner and in possession of the suit schedule property?
2. Whether the plaintiff proves that power of attorney dated 25.11.2000 was not executed by her and it is a fabricated document?
3. Whether the plaintiff proves that the sale deed dated 19.1.2001 executed by defendant No.2 in favour of defendant No.1 is not binding on her?
O.S No.1914/2006 12
4. Whether plaintiff proves the interference of the defendants?
5. Whether suit is properly valued and court fee paid is sufficient? (this Issue already decided)?
6. What order or decree?
ADDITIONAL ISSUES FRAMED ON 04.03.2010
1. Whether the suit is barred by limitation? ADDITIONAL ISSUES FRAMED ON 11.11.2015
1. Whether the 1st defendant proves that the deceased plaintiff by receiving sale consideration of Rs.3,50,000/- through her GPA holder i.e. defendant No.2 executed a registered sale deed dated 19.01.2011 in favour of the 1st defendant and transferred all the right, title interest and possession over the suit schedule property?
2. Whether the 1st defendant proves that the judgment and decree in O.S.No. 993/2006 became final, conclusive and binding on the defendants.
NOTE : It is noted from the records that no general issue regarding the entitlement of the relief sought is framed and therefore in order to O.S No.1914/2006 13 avoid any technicality and avoid multiplicity of proceedings, a general issue as to whether the plaintiff proves that she is entitled for the reliefs sought is framed as issue no.5A in the exercise of power under Order 14 Rule 5 CPC . The framing of the above issue at stage would not in any way prejudice the interest of either of the parties.
ISSUE NO.5A: Whether the plaintiff proves that she is entitled for the reliefs sought?
5. In order to prove the case, the plaintiff examined herself as PW.1 and got marked the documents at Ex.P.1 to Ex.P.11 and closed her side. Thereafter, the plaintiff died and her two sons are brought on record as her LRs. and one of the LRs. i.e. LR.(b) by name Sri Vidyashekar C. is examined as PW.2 on 16.10.2017.
5.1 On the other hand, to prove their defence, the defendant No.1 is examined as DW.1 and also examined another witness by name Sri Harish Chandra as DW.2 got marked documents at Ex.D.1 to Ex.D.44 and closed their side.
O.S No.1914/2006 14
6. Heard the arguments. Perused the records.
7. My findings to the above issues are as under:
Issue no.1 : In the Affirmative
Issue no. 2 : Does not survive for
consideration
Issue no.3 : In the Affirmative
Issue no.4 : In the Affirmative
Issue No.5 : Already decided vide order
dated 05.04.2007
Issue No. 5A : In the Affirmative
Addl. Issue No.1
dated 4.3.2010 : In the Negative
Addl. Issue No.1 & 2
framed on 11.11.2015 : In the Negative
Issue No.6 : As per the final order
for the following:
REASONS
8. Issue No.1, 2 3, 4 and additional Issue No.1 framed on 11.11.2015 :- These Issues are interconnected O.S No.1914/2006 15 with each other and therefore, they are taken up together for common discussion to avoid repetition of facts.
9. It is an undisputed fact that plaintiff was the absolute owner in possession of the suit schedule property which was acquired by her by virtue of the registered partition deed dated 16.07.1959. It is further not disputed that the plaintiff had entered into an agreement of sale in writing concerning the suit schedule property with the 1 st defendant on 12.04.1996 and the first defendant had file O.S.NO. 8852/1997 against the plaintiff for the relief of injunction and the said suit was withdrawn as settled out of court on 9.1.2006.
10. It is however the definite case of the plaintiff that the defendants without any right, title and interest or possession over the suit schedule property have forged the signatures of the plaintiff fraudulently and created a power of attorney dated 25.11.2000 purported to have been O.S No.1914/2006 16 executed by the plaintiff in favour of the 2 nd defendant. The plaintiff's husband is hale and healthy and he is an Advocate by profession. The two sons of the plaintiff are educated and major and therefore, the plaintiff was able to manage the suit schedule property by herself as she was doing since 1959. In the said circumstances there was no need for the plaintiff to execute any power of attorney in favour of the 2nd defendant, who is a stranger to the family. Therefore, the alleged GPA is avoid ab-initio.
11. It is her case that in furtherance of the fabricated, invalid, forged GPA, the defendants by colluding with each other have created a nominal registered sale deed deceased 19.01.2001 concerning the suit schedule property with the malafide intention to knock off the suit schedule property, and as such the sale deed purported to have been executed in favour of the first defendant on the strength of the O.S No.1914/2006 17 alleged GPA is not genuine and not binding on the plaintiff.
12. It is the further case of the plaintiff that even the sale consideration amount as shown in the sale deed of Rs.4,10,000/- is grossly inadequate. Therefore, the said document is not a genuine document. The 2nd defendant had no authority, interest or right to execute the registered sale deed to convey any title or possession in favour of the 1st defendant. Therefore, the purported sale deed executed on behalf of the plaintiff and her two sons who have not signed the sale deed or executed the alleged power of attorney is invalid, void and not binding on the plaintiff.
13. It is the further case of the plaintiff that by taking undue advantage of the purported sale deed, the defendant is attempting to enter into the possession of the suit schedule property and on 18.02.2006 at 11.00 a.m. the first defendant along with his henchmen illegally attempted O.S No.1914/2006 18 to trespass into the suit schedule property and dig foundation on the portion of the suit property. The 1st defendant has no right or authority to do so. The first defendant shall be prevented from pursuing his illegal acts with the timely intervention of the plaintiff's husband.
14. It is the further case of the plaintiff that plaintiff became aware of the alleged GPA dated 25.11.2000 and the alleged sale deed dated 19.01.2000 in the month of November 2005, when she approached the concerned Corporation Authorities for paying tax with respect to the suit schedule property. Therefore, the plaintiff has contended that she was unaware of the documents till the first week of November 2005 and even the original documents and the possession of the suit schedule property are with her, therefore, there was no occasion for her to file a suit at an earlier point of time. As such, according to her, the cause of action accrued only in the O.S No.1914/2006 19 first week of November 2005 and on 18.02.2006, when the first defendant attempted to trespass into the suit schedule property. Therefore, in this behalf she has filed the above suit for declaration and injunction.
15. PW.1 is the original plaintiff. She has produced the following documents in support of her case. Ex.P.1 Certified copy of sale deed dated 19.01.2001 Ex.P.2 Certified copy of plaint in O.S.No. 8852/1997 Ex.P.3 Certified copy of written-statement in O.S.No. 8852/1997 Ex.P.4 Certified copy of order sheet in O.S.No. 8852/1997 Ex.P.5 Certified copy of Memo of withdrawing the suit in O.S.No. 8852/1997 Ex.P.6- Tax paid receipts 8 Ex.P.9 Certified copy of written arguments of defendant No.1 herein and plaintiff therein in O.S.No. 8852/1997 along with objections and two adjournment applications Ex.P.10 Copy of FIR Ex.P.11 Copy of complaint O.S No.1914/2006 20
16. It is significant to note that in the written-statement, the defendant has specifically contended that the plaintiff has executed the GPA 25.11.2000 at Ex.D.22 nominating the second defendant who is her relative to sign the agreement of sale, sell, transfer and receive consideration from the intending purchasers and admit the execution of the sale deed and to register the suit property name of the purchaser before the Sub-Registrar; and on the basis of the GPA, the defendant No.2 as an authorized agent of plaintiff has executed the sale deed in favour of the defendant No.1 on 19.01.2001 as per Ex.P.1. The primary burden is on the defendant to prove the assertions made in the written-statement. Section 104 of the Bharatiya Sakshya Adhiniyam, 2023, provides whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and when a person is bound to prove the existence of any fact, it is said that the burden of O.S No.1914/2006 21 proof lies on that person. Section 104 of the Bharatiya Sakshya Adhiniyam, 2023, places the burden upon the party asserting particular facts lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Once the plaintiff has filed the suit seeking the declaration of her title and has challenged the GPA and the sale deed in favour of the defendants No.1 and 2, it is incumbent upon the defendants to prove the execution of the GPA and the sale deed and establish that these documents were executed in accordance with law.
17. The materials placed on record disclose that prior to the institution of the above suit by the plaintiff, the defendant No.1 had instituted O.S.No. 8852/1995 for the relief of permanent injunction against the plaintiff herein and the said suit was withdrawn by the defendant No.1 herein by stating that the matter was settled outside the court as per Ex.P.5 on 09.01.2006.
O.S No.1914/2006 22
18. It is further material to note that the defendant No.1 in O.S.No. 8852/1997 had filed an application seeking amendment of the plaint and had filed written arguments on the said application on 19.12.2005. The date of filing of the written arguments discloses that the written arguments on the amendment application was filed much after the execution of the sale deed in favour of the defendant No.1. The proposed amendment sought in the said application was to convert the suit from permanent injunction to specific performance of contract on the agreement of sale executed by the plaintiff herein in favour of the defendant NO.1 on 12.04.1996. The certified copy order sheet in O.S.NO. 8852/1997 reveals that the plaintiff had filed an application for amendment on 5.12.2000 and the application was kept pending till the dismissal of the suit on 9.1.2006
19. It is further noted that O.S.No. 993/2006 as produced by defendant No.1 at Ex.D.14 was filed by the O.S No.1914/2006 23 defendant No.1 against the plaintiff No.1(a) and (b) for the relief of permanent injunction on 01.02.2006, i.e. after the withdrawal of the suit filed by the defendant No.1 in O.S.No. 8852/1997 as per Ex.P.5. The plaintiff herein was not arrayed as party defendant in the said case. In the said suit for the first time the first defendant herein took up the plea that he was the owner of the property on the basis of the sale deed executed by the plaintiff herein and sought to grant permanent injunction against the children of the plaintiff, the defendants in O.S.NO. 993/2006 disputed the execution of the sale deed by the their mother Susheelamma in favour of the first defendant and claimed that she continued to be the owner of the suit property. The name of the second son of the plaintiff was wrongly shown as Vidyasagar instead of Vidyashekar .The suit filed for the relief of permanent injunction was decreed in favour of the first defendant herein. The first defendant is asserting his rights solely on the basis of the sale deed O.S No.1914/2006 24 dated 19.1.2001 executed by the plaintiff through her GPA Holder. If the defendant no.1 succeeds in proving the due execution of the GPA then consequently the sale deed assumes legal validity . Therefore it is necessary to examine whether the first defendant has proved due execution of the GPA . It is material to note that the due execution of the GPA has to examined in the light of the other attendant circumstances namely, circumstances that lead to the disposal of the suit bearing O.S.No. 8852/1997 filed by the first defendant against the first defendant and filing of the suit O.S.NO. 993/1997.
20. During the course of arguments the counsel for the defendant no.1 has heavily relied upon Section 84 of the Bharatiya Sakshya Adhiniyam, 2023( Erstwhile Section 85 of the Indian Evidence Act) which provides that the Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and O.S No.1914/2006 25 authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated and sought to contend by virtue of the presumption the due execution of the GPA stands proved. However on a minute scrutiny of the material evidence on record, the following infirmities with regard to the plea of the first defendant with regard the execution of GPA are found ;
(1) Ex.D.22 is the certified copy of the GPA produced by the first defendant. Ex.D.22 was produced before the court in the form of secondary evidence by pleading that the original is with the plaintiff. Upon perusal of the written- statement of defendant No.1, it is evident that the defendant No.1 has not pleaded anything regarding the existence of the original document and under what circumstances he was required to produce the secondary evidence. The defendant No.1 has not accounted regarding O.S No.1914/2006 26 the custody of the original GPA copy. When Ex.D.8 - sale deed is executed in favour of defendant No.1 on the strength of the alleged GPA, dtd 25.11.2000, the defendant No.1 should have produced the original GPA before the Sub-Registrar at the time of registration and it is only on confirming the contents of the GPA, the registration process would have concluded. It is not the case of the first defendant that the plaintiff never handed over the original GPA executed in favour of defendant No.2 and furnished only the Xerox copy to the defendant No.2 authorizing him to execute sale deed in favour of the defendant No.1. It appears that at the stage of evidence of DW.1 that the first defendant has cleverly stated that the original is in the custody of the plaintiff by relying on the complaint filed by the husband of the plaintiff at Ex.P.11, wherein in the list of the documents annexed with complaint the husband of the plaintiff has annexed the copy of the original GPA. Merely because the complaint at Ex.P.11 refers to the copy O.S No.1914/2006 27 of the original GPA, the defendant No.1 cannot contend that the original GPA is with the plaintiff and seek to admit the secondary evidence. There are no pleadings and evidence with reference to the custody of the original GPA in the written-statement. Section 60 of the BSA provides that the secondary evidence may be given a) when the original is shown or appears to be in the possession or power--
(i) of the person against whom the document is sought to be proved; or(ii) of any person out of reach of, or not subject to, the process of the Court; or (iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
O.S No.1914/2006 28
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time.
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
It is trite that under the Evidence Act, 1872 or under the BSA facts have to be established only by primary evidence and secondary evidence is only an exception to the O.S No.1914/2006 29 rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H.Siddiqui (dead) by LRs Vs. A. Ramalingam [2011 (4) SCC 240] the Apex Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence. In the case at hand, it is imperative to appreciate the evidence on record as it is only after scrutinizing the same opinion can be formed as to the explanation offered by the defendant. Except the bare statement made by DW1 during his chief examination no further evidence was lead by the defendants to prove the original GPA was in fact in the custody of the plaintiff, no material suggestions were made even to the witnesses of the plaintiff on the said plea and prove the entitlement of the first defendant to produce secondary evidence. Ex.D23 and ExD24 clearly manifest that only the xerox copy of the O.S No.1914/2006 30 GPA was seized by the police officials from the custody of the first defendant and therefore no proper account of the custody of the original GPA was provided by the first defendant. It is needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law. The Apex court in the matter of Dhanpat Vs. Sheo Ram (Deceased) Through Lrs. & Ors. on 19th March 2020, held that as per terms of Section 65(c) of the Evidence Act, in Civil Appeal No. 1960 of 2020, there is no requirement to file an application during producing secondary evidence to put on record. But the Apex Court in Jagmail Singh v. Karamjit Singh Civil Appeal NO. 1889/2020 has clarified that an admission of secondary evidence automatically does not attest to its authenticity, truthfulness or genuineness which will have to be established during the course of trial in accordance with law. The first defendant has not pleaded how the O.S No.1914/2006 31 photostat copy came to to his custody and further when and how the photostat copy was obtained from the mechanical process and whether it is the true copy of the original. Therefore in the absence of necessary proof of foundation for leading secondary evidence it cannot be held that the defendant no.1 was entitled to produce secondary evidence. It is equally well settled that if a party withholds from court the best evidence or some material evidence (document) or witness, adverse presumption against such party can be drawn u/s. 114(g) of the Evidence Act as held in M/s. Sri Ram Industrial Enterprises Ltd. vs. Mahak Singh, AIR 2007 SC 1370. At this stage it is appropriate to refer to Section 94 of the BSA which prescribes that when the terms of the contract have been reduced into writing, then the document itself has to be produced and no secondary evidence is admissible in this behalf. Therefore it was incumbent upon the defendants to produce the original of the same, when it is the fulcrum of the defence of the O.S No.1914/2006 32 defendants that the plaintiff has executed a GPA dated 25.11.2000 then it was the duty of the first defendant to lead evidence in this behalf and produce the GPA. It appears that the defendants have screened the vital document from the scrutiny of the court. The Hon'ble Apex Court in Rani Aloka Dudhoria v. Goutam Dudhoria (2009) 13 SCC 569, it is held that : Fraud as is well known vitiates all solemn acts. Suppression of a document , it is also trite, may amount to fraud on the court. The effect of commission of fraud must be taken taken note of. The said judgment was relied upon by the Hon'ble High Court in Ramachandra Kallihall versus Sunanda Koparde AIR 2016 KARNATAKA 140, wherein the High Court under similar circumstances had declared that the GPA which was relied upon by the defendants but not produced as null and void. Here in the present case also the defendant has failed to prove the authorization of the plaintiff to execute the sale deed in favour of the first defendant. There is no material O.S No.1914/2006 33 cross-examination directed against the PW.1 or PW.2 to elicit the execution of the GPA by the plaintiff in favour of defendant No.1.
(2) In the instant case even if Ex.D22 is considered as admissible, the GPA not being registered cannot be admitted in evidence. The power of attorney is not an instrument of transfer of title and no rights can be transferred on the basis of the power of attorney unless registered. In Channegowda & Anr. v. N.S. Vishwanath & Ors. (Neutral Citation: 2023:KHC:44651) has held that the deed of power of attorney is not one of the instruments specified under Section 17 of the Registration Act compulsorily registrable. However, if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell the immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration." Therefore in the absence O.S No.1914/2006 34 of registered GPA no importance can be given to the unregistered GPA.
(3) Ex.D22 discloses that the plaintiff had executed GPA in favour of her relative - defendant No.2. But there is no material on record to show that the plaintiff was in any way related to the defendant No.2. Defendant No.2 has remained ex-parte and defendant No.1 has not taken the pain of summoning the defendant No.2 to establish the due execution of the GPA at Ex.D.22. The defendant no.1 in his written statement has referred to the letter dated 16.11.2000 alleged to have been written by the plaintiff addressed to the first defendant stating that she was ready to execute the sale deed in favour if the first defendant through her relative Ramaiah , to whom she would give GPA to do the needful on her behalf but surprisingly the said letter was not produced during the evidence. Ex.D22 does not the authorize the second defendant to alienate the property in favour of first defendant but a general power is O.S No.1914/2006 35 granted to act on behalf of the plaintiff and therefore even this aspects appears to be suspicious.
(4) Ex.D.22 further reveals that the executant namely, the plaintiff was identified by Advocate Sri A. Srinvias before Notary, Sri H.V. Mohan and to that effect seal of the Notary has been affixed stating that the executant is identified by the Advocate and admitted before the Notary. Surprisingly, the defendant No.1 has not summoned the Advocate who has identified the plaintiff before the Notary. In this regard even the statement of the Notary at Ex.D.26 C.C.NO.1806/2013 fortifies that the Notary Officer has stated that on identification of the executant by the Advocate he has affixed his seal.
(5) Similarly, the statement of the Advocate Sri K. Srinivas in C.C.NO.1806/2013 at Ex.D.26 reveals that he has identified the executant plaintiff before the Notary. When the very execution of the GPA is challenged by the plaintiff by filing a criminal complaint leading to registration of O.S No.1914/2006 36 criminal proceedings in Cr.No.42/2006 followed by CC NO. 1806/2013, against the defendant No.1 and 2 and Advocate Sri A. Srinivas, it was incumbent upon the defendant No.1 to examine the Advocate and the Notary before whom the execution and authentication of the Notary has been carried out. It is noted from the order sheet that on 09.12.2020 the witness summons issued to Advocate Sri Srinivas and Notary Sri C. Mohan were returned un-served and thereafter, the defendant has submitted before the court that he would not press the evidence of the aforesaid witnesses and accordingly closed his side on the said date. The defendant No.1 has not explained as to why he has given up the evidence of the proposed witnesses when their evidence was very much necessary for the adjudication of the case. In fact, in the application dated 24.02.2020 in I.A.No.22 filed by the defendant No.1, the defendant No.1 has himself stated the application is filed to summon the aforesaid witnesses in O.S No.1914/2006 37 proof of Ex.D.22. Therefore, the non - examination of these two witnesses has turned out to be fatal to the case of the first defendant.
(6) The recitals of sale deed at Ex.D.1 executed in favour of the plaintiff through the alleged P.A.Holder - C. Ramaiah reveal that sale deed was executed by the plaintiff along with her two sons namely - Sri C. Gunashekar and Sri C. Vidyasagar but the children of the plaintiff have not executed or signed the sale deed as consenting witnesses. It was never the case of the first defendant in O.S. NO. 933/2006 that the defendants therein namely the children of Susheelamma had executed the sale deed in his favour and despite the said fact they had interfered with his possession. The infirmity in this regard has not been explained by the defendant No.1.
(7) On 08.11.2023 the defendant No.1 has filed I.A.NO.3/2024 under Section 151 of CPC for discarding the evidence of DW.1 and to permit the GPA holder of O.S No.1914/2006 38 defendant No.1 to lead evidence. The said application was allowed by this Court and the prayer to discard the evidence of DW.1 was rejected on 18.12.2023. However the first defendant by then had already entered the witness box as DW1 and in his evidence has reiterated the contents of the written-statement filed by him and in his cross examination has stated that he is unaware of the total extent of the suit schedule property and so also he is not aware of the owner on the western side of the suit schedule property. The cross-examination directed against the DW.1 on 01.07.2022 though is not extensive but the preliminary and fundamental questions have been denied by the defendant No.1. His conduct in feigning ignorance regarding the primary particulars of the suit schedule property and subsequently authorizing his GPA holder to lead evidence on his behalf indicates that DW.1 has deliberately avoided his appearance before the court to suppress the truth.
O.S No.1914/2006 39 (8) DW.3, who is the GPA holder of DW.1 in his evidence has categorically admitted that he is an employee under defendant No.1 and he was working as a Manager of the industrial Unit namely Suri Industries. He has further admitted that defendant No.1 is currently running real estate and land development business and DW.3 continues to be employed under him even as on the date of his evidence before the court. He has further admitted that defendant No.1 was running real estate business in the year 2007. No doubt DW.3 has stated the details of the adjacent owners of the suit schedule property but he has pleaded ignorance regarding his neighbour with reference to the property owned by him. He has deposed in his evidence that he is unaware of the owner of the property whose house is situated on the hind side of his property. Thus, the evidence of DW.3 does not inspire the confidence of the court not only for the reason that he appears to be a tutored and interested witness but also for the reason that O.S No.1914/2006 40 he is not the witness to either the agreement of sale at Ex.D.1 or the sale deed at Ex.D.8 or the GPA at Ex.D.22. The evidence of DW3 cannot be assumed to be that of person having personal knowledge regarding the transactions between the plaintiff and the first defendant. Although Order 3 Rule 1 CPC does not debar a power of attorney to adduce evidence on behalf of the party and impliedly authorize the agents of the parties to lead evidence but in the suit of such nature where the executant of the document has denied execution of the document and fraud and collusion has been alleged it was obligatory on part of the party to lead evidence by himself. If the first defendant had appeared before the court than certainly the scope of the oral evidence would have been larger as all material aspects touching the disputed transactions would have been thrashed out. In the instant case the scope of the evidence of the power of attorney of the first defendant was limited as the he was not the witness to any of the O.S No.1914/2006 41 transactions and therefore it cannot be contended that he has personal knowledge of the case , his evidence is that of a hearsay witness . Section 6 of the Indian Evidence Act, 1872 , now Section 4 of the BSA , defines Res Gestae as "facts which though not in issue are so connected with a fact in issue as to form part of the same transaction are relevant whether they occurred at the same time or place or at different times and places". Thus, for a fact that is to be shown as a part of Res Gestae, the hearsay evidence must be linked to the facts in the issue but should not be a fact in the issue themselves. When a statement is made in a court of law, it may be further proved during the legal proceedings by another person appearing as a witness providing hearsay evidence that the statement is a part of the same transaction. But the evidence of DW3 does not in any way indicate that his evidence is in the furtherance of the fact in issue or is linked with the fact in issue and therefore his evidence though hearsay is believable. There O.S No.1914/2006 42 is nothing on record to indicate the role of DW3 in the impugned transactions therefore his evidence in prove of the case of the first defendant cannot be believed. (9) DW.2 is one the witnesses to the alleged GPA executed by plaintiff in favour of defendant No.2. DW.2 in his chief examination no doubt has stated that the plaintiff has executed GPA in favour of defendant No.2 on 25.11.2000 and he has signed the GPA in the presence of the Notary at Advocate's Association, Bengaluru and has identified the signature on Ex.D22 as Ex.D.22(a). DW.2 has produced the attested copy of his three sheets of pension card and copy of adhaar card to prove his identity and signature. But during his cross-examination he has turned hostile to the case of the defendant No.1. and has admitted that he has not seen the plaintiff. There is no re - examination by the counsel for the defendant No.1 to elicit the knowledge of DW.2 and prove that as on the date of the execution of the GPA, he had seen the plaintiff before the Notary. The O.S No.1914/2006 43 absence of re - examination of DW.,2 has turned out to be fatal to the case of defendant No.1. Further DW.2 has feigned ignorance regarding the initial of defendant No.2 and his residential address. Thus it appears that DW2 has turned hostile to the case of the first defendant and as such the evidence of DW.2 is not helpful to the defendant No.1. (10) There is no reference with respect to the date of the document on which the GPA was executed. Ex.D8 sale deed is conspicuously silent on the material details of the GPA. No details are pleaded regarding the transfer of consideration from defendant No.1 to the plaintiff as per the recitals of the sale deed. The first defendant who is the beneficiary of the sale deed at Ex.D8 has not produced any iota of evidence to prove his source of income and his financial capacity to pay the sale consideration to the plaintiff as on the date of the sale deed. Therefore there is neither pleading nor evidence on the transfer of consideration by the first defendant.
O.S No.1914/2006 44 (11) It is further significant to note that the entire defence of the defendant no.1 is based on the alleged execution of the GPA by the plaintiff in favour of the defendant no.2 but the very execution of the GPA dated 25.11.2000 is disputed by the plaintiff by initiating criminal proceedings against the defendants at Ex.P11 wherein the husband of the plaintiff has filed a complaint alleging commission of offences under Section 420,468,471 and 474 and Section 34 of IPC with reference to the impugned GPA and sale deed. The complaint at EX.P11 was filed on 28.3.2006 , which lead to registration of FIR in Thyagarajanagar Crime NO. 42/2006 against the defendants and Advocate Sreenivas under Ex.P10 and later on the police officials have filed charge sheet in the said case and criminal case is registered as CC NO. 1806/2013. The Counsel for the defendant no.1 has contended that the complaint at Ex.P.11 was not filed by the plaintiff and therefore, the claim of the plaintiff disputing the execution of GPA is not O.S No.1914/2006 45 sustainable. It is well-settled law that any person can set the criminal law in motion. Therefore, it was not incumbent upon the plaintiff alone to file a criminal complaint for initiation of the criminal proceedings against the defendants No.1 and 2.
(12) The first defendant in O.S.NO. 8852/1997 had contended that possession of the suit property was handed over to him under the agreement of sale on 12.4.1996 but the factum of handing over of the possession was denied by the plaintiff herein in the said suit. However the recitals of the sale deed at Ex.P1 disclose that the possession of the suit property was handed over under the sale deed on 19.1.2001, this discrepancy in the case of the first defendant has not been explained. PW1 during her cross examination has specifically denied that possession was handed over by her under the sale agreement dated 12.4.1996.
O.S No.1914/2006 46 (13) When it is the case of the first defendant that remaining sale consideration was not paid in the pending suit for the grant of permanent injunction then it was his duty to explain how the remaining sale consideration of 3,50,000/- was paid under the impugned sale deed but no explanation is offered. The entire cross-examination directed to PW1 is on the alleged consideration received under the agreement of sale at Ex.D.1 and Certificate issued by banker of first defendant that he had kept the remaining sale consideration of Rs.3,50,000/- ready during the pendency of O.S.No. 8852/1997. PW.1 has specifically denied the execution of sale deed of defendant No.1 on the strength of Power of Attorney executed by her in favour of defendant No.2. She has denied the receipt of remaining consideration of Rs.3,50,000/- from defendant No.2 under Ex.D.8. She has admitted the filing of the criminal complaint by her husband in the year 2005. She has admitted that she has obtained the certified copy of the sale O.S No.1914/2006 47 deed in favour of the defendant No.1 in the year 2005 and the transfer of katha in favour of defendant No.1 in the year 2005. She has deposed that she has given application to cancel the khatha in favour of defendant No.1. (14) PW1/Plaintiff has been cross-examined at length. During the course of her cross-examination, nothing has been elicited to prove that pursuant to the unregistered sale agreement at Ex.D.1, she appointed defendant No.2 as her power of attorney holder on 25.11.2000 during the pendency of the suit bearing No.8852/1997, and in turn her power of attorney holder has executed the sale deed on 19.01.2001 in favour of the first defendant, thereby conveying the valid title, interest and possession under Ex.P.1. PW.2 is the son of plaintiff and he has come on record on the death of the original plaintiff as plaintiff No.1(b). Even during his cross-examination, nothing has been elicited to prove that consequent to the sale deed, there has been a valid conveyance of title and possession in O.S No.1914/2006 48 favour of the defendant No.1. It is apparent that the act of the defendant no.2 in executing the sale deed in favour of the defendant no.1 on 19.1.2001 through the purported general power of attorney dtd. 25.11.2000 was not placed on record in O.S.No. 8852/1997 and despite the execution of sale deed on 19.1.2001, the first defendant filed written arguments as produced at Ex.P9, for conversion of suit from permanent injunction to that of Specific Performance of contract .
Therefore from the conspectus of the infirmities noted above and oral evidence of the parties it is appropriate to refer to Section 17 of the Indian Contract Act 17. Section 17: 'Fraud' defined.--
'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent', with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;(2)the active concealment of a fact by one having knowledge or belief of the fact;(3)a promise made without any intention of performing it;(4)any other act fitted to deceive;(5)any such O.S No.1914/2006 49 act or omission as the law specially declares to be fraudulent.
21. A careful perusal of the above provision clearly demonstrates that the definition of fraud is wide enough to encompass all acts which are fitted to deceive and includes active concealment of facts and therefore relying on the above provision and the materials on record it is apparent that the act of the defendant no.2 in executing the sale deed in favour of the defendant no.1 on 19.1.2001 through the purported general power of attorney alleged to be executed by the plaintiff for a consideration amounts to fraud . Further the 1st defendant has failed to prove that the deceased plaintiff by receiving sale consideration of Rs.3,50,000/- through her GPA holder i.e. defendant No.2 had executed a registered sale deed dated 19.01.2001 in favour of the 1st defendant and transferred all the right, title interest and possession over the suit schedule property; and consequently when the first defendant has failed to O.S No.1914/2006 50 prove the due execution of the GPA. In the background of the facts narrated herein above it cannot be said that the authentication of the GPA is clear, specific , decisive and bereft of infirmities and consequently the presumption available under Section 84 of the Bharatiya Sakshya Adhiniyam , 2023 in favour of the due execution and authentication of the power of attorney cannot be applied and in view of the same no rights can flow in favour of the defendants no.1 on the basis of GPA dated 25.11.2000 and the sale deed dated 19.1.2001 therefore the GPA dtd 25.11.2000 and sale deed dated 19.1.2001 are null and void ab intio. The registered sale deed dated 19.1.2001 in favour of the first defendant is casting a cloud upon the title of the plaintiff. A cloud is something which is apparently valid, but which is in fact invalid. The defendants have failed to prove that the impugned sale deed is a genuine transaction for consideration and thus the sale deed dated 19.1.2001 is null and void . There is O.S No.1914/2006 51 absolutely no iota of evidence that the possession of the suit property is with the first defendant either under the sale agreement or under the alleged sale deed. There is no pleading and cross examination to prove that pursuant to the impugned sale deed the defendant no.1 has obtained the possession of the suit property. In fact the stand of the first defendant with reference to the possession of the suit property has been oscillating as the first defendant in O.S.No. 8852/1997 had taken the stand that possession was handed over under the agreement of sale at EX.D1 while the recitals of the sale agreement never divested the plaintiff with the possession of the suit property there is no iota of evidence to demonstrate that the possession is with the first defendant. The Khata certificate and Khata Extract, tax paid receipts, encumbrance certificate, notice issued by BBMP produced EX.D10 , 11, 12,13, 16and 21 do not prove that the first defendant was in the actual possession of the property . PW.1 has clearly stated in her O.S No.1914/2006 52 evidence that she has paid the property tax with reference to the suit schedule property and she has denied the payment of property tax by defendant No.1. Ex.P6 to P8 clearly reveal that the plaintiff had paid property taxes on 4.6.2001, 27.5.2002and 28.7.2003. None of the documents produced by the plaintiff are disputed. The finding recorded above clearly manifest that the defendants have failed to prove the due execution of the GPA and consequently due execution of the sale deed by the plaintiff in favour of the defendant No.1 on the strength of the purported GPA executed by the plaintiff in favour of the defendant no.2. The plaintiff has pleaded that an old structure which was existing in the portion of the suit property has collapsed an the tax paid receipt produced at Ex.P8 by the plaintiff clearly indicates that suit property is a vacant land. The notice issued in the name of the fist defendant by the BBMP dated 3.3.2014 at Ex.D16 also demonstrates that the suit property is a vacant land. The description of the O.S No.1914/2006 53 schedule of the property at the sale deed produced at Ex.P1 reveals that the suit property is a vacant land and it is not the case of the first defendant that subsequent to the sale deed he has undertaken construction and is in peaceful possession and enjoyment of the same. No iota of evidence is produced to prove the actual possession in the form of electricity bills, water bills, gas agency bills, etc. The defendant has not produced any positive evidence of ouster of the plaintiff from the schedule property. Thus the suit property is a vacant land and possession of the property runs with the title. In view of the findings recorded above it is evident that the defendant no.1 and 2 are falsely asserting their right on the basis of the alleged GPA and Sale deed and interfering with the peaceful possession and enjoyment possession of the plaintiff over the suit property by attempting to trespass and dig foundation in the suit property on the strength of the sale deed . There is nothing to disbelieve the case of plaintiff with reference to O.S No.1914/2006 54 possession of the plaintiff as on the date of suit and interference caused by the defendants. Thus the plaintiff has proved her possession and interference by the defendants.
22. The question of the plaintiff proving that power of attorney dated 25.11.2000 was not executed by her does not arise as negative issue cannot be cast on the plaintiff to prove that she had not authorized the second defendant to sell the suit schedule property, as the burden is always on the person who positively asserts the particular fact and not on the person who denies the particular fact. As regards the second part of issue no.2 that the whether the plaintiff proves that alleged GPA is fabricated also does not arise as the issue of fabrication would arise only when the defendant no.1 proves the valid execution of the GPA but having failed to do so, the said issue does not arise for consideration. The authorities relied by the defendants in O.S No.1914/2006 55 RFA NO. 1871/2007 and AIR 1971 SC 761are distinguishable on facts and not applicable to the facts of the case. Therefore the plaintiff has proved that she is the owner in possession of the suit property; and the sale deed dated 19.1.2001 executed by the second defendant in favour of the first defendant is not binding on her and the first defendant has failed to prove that the deceased plaintiff by receiving sale consideration of Rs.3,50,000/- through her GPA holder i.e. defendant No.2 executed a registered sale deed dated 19.01.2011 in favour of the 1 st defendant by transferring all the right, title interest and possession over the suit schedule property and the further the plaintiff has proved that the defendant no.1 is interfering with the possession of the plaintiff according issue no.1 3 and 4 are answered in affirmative; issue no.2 does not arise for consideration and additional issue no.1 is answered in negative.
O.S No.1914/2006 56
23. Additional issue no.2 framed on 11.11.2015 .: It is the definite case of the first defendant that the judgment and decree in O.S.NO. 993/3006 is binding on the plaintiff. Admittedly the above suit is for a comprehensive relief of declaration and injunction and therefore the decree passed in a suit for injunction simplicitor does not over ride the decree passed in a declaration suit. But the decree passed in a declaration suit prevails over the decree of injunction. When the rights of the parties are adjudicated on broader platform and rights of the parties have been crystallized, the contention of the first defendant that the judgment and decree passed in O..S. NO. 933/2006 is still binding on the plaintiff and her legal representatives is not sustainable. The former suit filed by the first defendant in O.S.NO. 993/2006 having been brought for claiming a relief of issuance of injunction only and the decree passed therein cannot operate as res judicata as against the present plaintiff or her legal representatives. . The judgment and O.S No.1914/2006 57 decree rendered in the former suit in O.S.NO. 993/2006 are not shown to be relevant according to the provisions of Section 34 (judgments in personam), Section 35 (judgment in rem), and/or Section 36 (judgments relating to matters of public nature) of the Bharatiya Sakshya Adhiniyam . Therefore, according to the provisions of Section 37 of the Evidence Act, the judgment passed in the former suit is irrelevant. Therefore the first defendant has failed to prove that the judgment and decree in O.S.NO. 993/2006 is final, conclusive and binding on the plaintiff and thus additional issue no.2 dtd 11.11.2015 is answered in negative.
24. Additional issue no. 1 framed on 4.3.2010. : The first defendant in the written statement has contended that the suit is barred by law of limitation. However the first defendant himself has suggested to PW1 during the cross examination that the plaintiff has obtained the certified copy of the sale deed dated 19.1.2001 in November 2005 O.S No.1914/2006 58 and complaint was filed against the first defendant by the husband of the plaintiff in 2005, these suggestions clearly indicate that the first defendant has admitted that the the case of the plaintiff regarding the knowledge of the sale deed in 2005 and there is no cross examination to indicate that the plaintiff had knowledge of the sale deed prior to 2006 in order to prove that the suit of the plaintiff was barred by the law of limitation. Article 58 of the Limitation Act prescribes 3 years limitation to file a suit for declaration from the date when the cause of action first accrues and the facts narrated in the plaint clearly disclose that the plaintiff got to know of the sale transaction only in 2005 and the suit is filed in 2006 within three years from the date of cause of action. Section 17 of the Limitation Act 1963 provides where the suit or application is based upon the fraud of the defendant limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have O.S No.1914/2006 59 discovered it . Here it is not the case of the first defendant that the plaintiff is not entitled for the benefit of extension under Section 17 of the Limitation Act,and thus the suit is filed in time. According additional issue no.1 dated 4.3.2010 is answered in Negative.
25. Issue No.5, 5A and 6 :- The issue no.5 pertaining to suit valuation and court fees is already decided by this court on 5.4.2007 and therefore no fresh findings are required to be recorded. In view of my findings on above issues, the plaintiff has proved that she is entitled for the reliefs sought by her and thus, the plaintiff is declared as the absolute owner of the suit property. The General Power of Attorney dated 25.11.2000 purported to be executed by the plaintiff in favour of the defendant No.2 is declared as null and void. And The registered sale deed dated 19.1.2001 purported to be executed by the plaintiff through her alleged GPA holder in favour of the defendant O.S No.1914/2006 60 No.1 is declared as null and void. Further the defendants, their agents, successors, legal representatives or any other person acting on their behalf are hereby restrained from causing interference with the peaceful possession and enjoyment of the suit property and therefore issue No.5A is answered in the Affirmative, Further it is appropriate to record further findings under Section 31(2) of Specific Relief Act. Under the said provision the power is vested with the courts granting the relief of cancellation of the instrument to also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Here in the above case the sale deed dated 19.1.2001 is held null and void . The sale deed dated 19.1.2001 is registered before the Sub Registrar under the Indian Registration Act. There is every likelihood that the beneficiary under the above instrument may create third party rights O.S No.1914/2006 61 notwithstanding the declaratory relief granted by this court in favour of the plaintiff. In a dispute of such nature, causing of entries on the copies of the instruments is absolutely necessary even with in respect of declaratory relief awarded, so that the person applying for the certified copy would be in a better position to determine the titles of the persons concerned. Therefore to avoid unscrupulous and void transactions it is deemed just and fit that the Sub Registrar of the concerned jurisdiction be directed to make an entry regarding the declaratory relief granted by this court with reference to the sale deed dated 19.1.2001 . The Sub-Registrar, Jayanagar Bengaluru is hereby directed to make an entry regarding the declaratory relief granted in favour of the plaintiff with respect to the sale deed dated 19.1.2001 registered as document No. JAY-1-04838-2004-05 stored in C.D.No. JAYD35 in the concerned records ; and further the Registrar, City Civil Court Bengaluru is directed to send a formal intimation O.S No.1914/2006 62 to the Sub-Registrar Jayanagar for causing an entry in this regard. therefore I proceed to pass the following :
ORDER The suit of the plaintiff is decreed with costs.
1. The plaintiff is declared as the absolute owner of the suit property.
2. The General Power of Attorney dated 25.11.2000 purported to be executed by the plaintiff in favour of the defendant No.2 is declared as null and void.
3. The registered sale deed dated 19.1.2001 purported to be executed by the plaintiff through her alleged GPA holder in favour of the defendant No.1 is declared as null and void.
O.S No.1914/2006 63
4. The defendants, their agents, successors, legal representatives or any other person acting on their behalf are hereby restrained from causing interference with the peaceful possession and enjoyment of the suit property.
The Sub-Registrar, Jayanagar Bengaluru is hereby directed to make an entry regarding the declaratory relief granted in favour of the plaintiff with respect to the registered sale deed dated 19.1.2001 registered as document No. JAY-1-04838-2004-05 stored in C.D.No. JAYD35 in the concerned records ; and further the Registrar, City Civil Court Bengaluru is directed to send a formal O.S No.1914/2006 64 intimation to the Sub-Registrar Jaynagar for causing an entry in this regard.
Draw decree accordingly.
(Dictated to the Senior Shirestedar (Stenographer Grade-I), transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 18h day of December 2024).
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 - Smt. T.V. Susheelamma - 18.11.2009 P.W.2 - Sri Vidyashekar C. - 16.10.2017
b) Defendants' side: DW.1 - Sandeep M. II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Certified copy of sale deed dated 19.01.2001 Ex.P.2 Certified copy of plaint in O.S.No. 8852/1997 O.S No.1914/2006 65 Ex.P.3 Certified copy of written-statement in O.S.No. 8852/1997 Ex.P.4 Certified copy of order sheet in O.S.No. 8852/1997 Ex.P.5 Certified copy of Memo of withdrawal filed in O.S.No. 8852/1997 Ex.P.6- Tax paid receipts 8 Ex.P.9 Certified copy of written arguments of defendant No.1 herein and plaintiff therein in O.S.No. 8852/1997 along with objections and two adjournment applications Ex.P.10 Copy of FIR Ex.P.11 Copy of complaint
b) Defendants' side :
Ex.D.1 Original agreement of sale dated 12.04.1996 Ex.D.2 Letter dated 16.05.1996 Ex.D.3 Letter dated 08.07.1996 Ex.D.4 Certified copy of plaint in O.S.No. 8852/1997 Ex.D.5 Certified copy of order sheet in O.S.No. 8852/1997 Ex.D.6 Memo for withdrawal of suit in O.S.No. 8852/1997 Ex.D.7 Letter issued by Bank O.S No.1914/2006 66 Ex.D.8 Certified copy of sale deed dated 19.01.2001 Ex.D.9 Order of District Registrar, Jayanagar dated 31.07.2002 Ex.D.10, Katha certificate and extract 11 Ex.D.12 Tax paid receipts Ex.D.13 Encumbrance certificate Ex.D.14, Certified copy of judgment and decree in 15 O.S.No. 993/2006 Ex.D.16 Notice issued by BBMP dated 03.03.2014 Ex.D.17 Copy of letter dated 12.11.1997 Ex.D.17 UCP receipt
(a) Ex.D.18 Receipt dated 02.05.2000 Ex.D.19 Encumbrance certificate Ex.D.20 Letter dated 17.01.2001 Ex.D.21 Tax paid receipt Ex.D.22 GPA dated 25.11.2000 Ex.D.23 Certified copy of P.F. in CC.No.1806/2013 Ex.D.24 Certified copy of mahazar Ex.D.25 Tax paid receipt Ex.D.26 Certified copy of statement in CC No.1806/2013 Ex.D.27 Certified copy of written-statement in O.S.No. 993/2006 Ex.D.28 Certificate issued by Bank dated 16.08.2016 O.S No.1914/2006 67 Ex.P.29, Notarized attested copy of three sheets of 30 pension card of DW.2 and Adhaar card Ex.D.31 Original SPA executed by defendant No.1 in favour of DW.3 Ex.D.32- Tax paid receipts 34 Ex.D.35 Certified copy of sale deed deceased 26.08.1993 Ex.D.36 Certified copy of order dated 18.04.1994 in O.S.No. 11017/1993 Ex.D.37 Certified copy of written-statement of defendant No.7 in O.S.No. 11017/1993 Ex.D.38 Certified copy of written-statement of defendant No.4 in O.S.No. 11017/1993 Ex.D.39 Certified copy of written-statement of defendant No.5 & 6 in O.S.No. 11017/1993 Ex.D.40 Certified copy of I.A. under Order 6 Rule 17 in O.S.No. 8852/1997 Ex.D.41 Certified copy of I.A. under Order 5 Rule 20 in O.S.No. 8852/1997 Ex.D.42 Certified copy of memo dated 23.10.2007 Ex.D.43 Certified copy of vakalath in O.S.No. 993/2006 Ex.D.44 Certified copy of plaint in O.S.No. 993/2006 (SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
O.S No.1914/2006 68 O.S No.1914/2006 69