Bangalore District Court
Smt. Muniyamma vs D. Nagaraja Chetty S/O on 30 January, 2020
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. H. CHANNEGOWDA, B.Sc., LL.B.,
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 30th DAY OF JANUARY 2020
OS.NO. 3745 OF 2008
PLAINTIFF/S SMT. MUNIYAMMA
W/O LATE NARASIMHAIAH
AGED ABOUT 58 YEARS,
RESIDING AT CHIKKABETTAHALLI,
YELAHANKA HOBLI,
BANGALORE NORTH TALUK.
(By Sri.Sangamesh G. Patil, Adv.)
Versus
DEFENDANT/S 1. D. NAGARAJA CHETTY S/O
SEETHAIAH CHETTY, AGED
BOUT 42 YEARS, RESIDENT
OF CHIKKABETTAHALLI,
YELAHANKA HOBLI,
BANGALORE NORTH TALUK.
2. THIMMAKKA, W/O
VENKATARAMANAPPA, AGED
ABOUT 58 YEARS.
3. P.KRISHNA MURTHY, S/O
VENKATARAMANAPPA AGED
ABOUT 29 YEARS.
BOTH ARE RESIDING AT No.7/3, 4TH
2 O.S. No.3745 / 2008
CROSS, HOS GUDDADAHALLI,
MYSORE ROAD, BANGALORE -
560026.
4. SRI.V.S. REDDAPPA CHETTY,
S/O LATE V.
VENKATARAMAIAH CHETTY,
AGED ABOUT 64 YEARS,
RESIDING AT No. 67/C, 2ND
MAIN, 3RD BLOCK, 3RD STAGE,
BASAVESWARANAGAR,
BANGALORE - 79.
5. SRI.M.V.SHANMUGAM S/O
LATE M. VIJAYARANGAM,
AGED ABOUT 78 YEARS.
6. SRI.M.S.JAGADEESHAN S/O
M.V. SHANMUGAM, AGED
ABOUT 48 YEARS.
BOTH ARE RESIDING AT No.40, 4TH
CROSS, 1ST MAIN ROAD, OLD
GANGANAGAR, BANGALORE - 560
032.
7. SRI. M.R. BHAGAVA GUPTA
S/O RAMAIAH SETTY, AGED
ABOUT 62 YEARS, RESIDING
AT No.110, 13TH MAIN ROAD,
GOKULAR 1ST STAGE, 1ST
PHASE, BANGALORE - 54.
8. SRI.K.S.VENKATESH S/O LATE
KRISHNA IYENGAR, AGED
ABOUT 60 YEARS, RESIDING
AT No. 3, 3RD TEMPLE ROAD,
SIDDANTHI BLOCK,
MALLESWARAM, BANGALORE
- 560 003.
3 O.S. No.3745 / 2008
9. SMT.B.M. VANAJAKSHI W/O
D. SHANTHARAM, AGED
ABOUT 62 YEARS.
10. SRI. P. SHEKAR, S/O K.R.
PARATHASARATHY, AGED
ABOUT 40 YEARS.
11. SRI.P.SRINIVAS, S/O K.R.
PARATHASARATHY, AGED
ABOUT 41 YEARS.
DEFENDANT No.9 TO 11 ARE
RESIING AT No. 945, 13TH CROSS,
4TH BLOCK, H.MT. LAYOUT,
VIDYARANYAPURA, BANGALORE -
97.
12. SRI.P.R.PERIYAKUPPAN, S/O
PERIYATHAMBI CHETTIAR,
MAJOR.
13. SMT.P.R.KAMALA W/O P.R.
PERIYAKUPPAN, MAJOR.
14. SRI.P.R.PERIYATHAMBI, S/O
P.R. PETIYAKUPPAN, MAJOR.
DEFENDANTS No.12 TO 14 ARE
RESIDING AT No. 281,
RAJAJINAGAR, 3RD BLOCK,
BANGALORE - 560 010.
(Defendant No.1, 4, 7 by Sri.
M.C.Jayakirthi, Adv.
Defendant No.2 & 3 by Sri. Keshava
Kumar B. Adv.
Defendant No.5 by Sri.M.Gopal, Adv.
Defendant No.6 & 8 -Exparte
4 O.S. No.3745 / 2008
Defendant No.9 to 11, 12 to 14 by
Sri.B.G.Rajshekhar, Adv.)
Date of Institution of the 09.06.2008
suit
Nature of suit Suit for declaration and
permanent injunction.
Date of commencement of 20.09.2013
recording of evidence.
Date on which judgment 30.01.2020
was pronounced.
Total Duration. Years Months Days
11 07 21
XXXVII A CCJ, BANGALORE
5 O.S. No.3745 / 2008
JUDGMENT
The plaintiff has filed this suit against the defendants for judgment and decree to declare that the sale deed dated 01.06.1990 executed by the defendant No.2 and her children in favour of the 1st defendant in respect of the suit schedule property is null and void / cancel and not binding on the plaintiff and to declare that the sale deeds dated (1) 14.11.2003, which is registered as Document No. BNG (U)/YLNK/ 11276/2003-04/1- 18, (2) dated 14.11.2003, which is registered as Document No. BNG (U)-UYLNK/11274/2003-04/1-18, (3) dated 11.03.2004, which is registered as document No.BNG (U)-YLNK/19740/2003- 04/1-12, (4) 11.11.2002, which is registered as Document No. BNG(U)-YLNK/7438/2002-03/1-16 and (5) dated 17.05.2002, which is registered as Document No.BNG(U)-YLNK/1401/2002- 03/1-14 all registered in the office of the Sub-Registrar, Yelahanka, Bangalore North Taluk, executed by the first defendant through his alleged GPA holder, the 4th defendant, in respect of the different portions of the schedule property, as not binding on the plaintiff and for permanent injunction restraining the defendants and their agents, servants, henchmen, workmen 6 O.S. No.3745 / 2008 or anybody is claiming under them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property or from dispossessing the plaintiff forcibly from the suit schedule property in any manner along with costs of the suit.
2. In brief the case of the plaintiff is as under:
One Patel Muniyappa gave birth to three children namely Narayanappa, Marappa and Chikka Narayanappa. During the lifetime of Patel Muniyappa Constituted a joint Hindu Family and after his death, his three sons were continued in the said Joint Hindu Family for some time. In the Year 1939-40 a registered partition came to be effected among three sons of Late Patel Muniyappa and as per the Partition the property bearing Sy.No. 27 and 28 totally measuring 4 acres of land of Chikkabettahalli allotted to Marappa along with other Properties. The first son Narayanappa and last son Chikka Narayanappa were allotted their shares in the said partition. After the partition the sons of Patel Muniyappa were continued in possession and enjoyment of their respective shares without any interference of each other.
The Second son Marappa gave birth to only daughter Thimmakka 7 O.S. No.3745 / 2008 and he died leaving behind his wife Puttamma and daughter Thimmakka as his legal representatives. After the death of Marappa his wife Puttamma sold the property bearing Sy.No. 27,28 totally measuring 4 acres along with other property under a registered Sale deed dated 06.01.1975 in favour of Narayanappa. The said Narayanappa gave birth to three sons namely Narasimhaiah , Anjanappa and Munegowda. The said Narayanappa constituted a joint Hindu family during his lifetime. The joint family of the said Narayanappa has been in possession and enjoyment of the above said property since 1975 till today. Narayanappa died leaving behind his three sons, Munegowda and his wife Ramakka have died with out any issue. Narasimhaiah and Anajanappa become the successors of the estate of Late Narayanappa.
3. Further it is alleged that, Sri.Narasimhaiah the husband of the plaintiff died long back leaving behind the plaintiff and her children as his legal representatives. The plaintiff had filed O.S No.6767/97 against the brother of her husband and others for partition and separate possession of the joint family properties. 8 O.S. No.3745 / 2008 The suit schedule property is also the subject matter of the said suit. That in view of the settlement between the parties the said suit came to be withdrawn. Anjanappa who is the brother of Narasimhaiah has been separated from the joint family by effecting oral partition in the year 1999. As per the partition the property bearing Sy.No. 28 measuring 2 Acre 13 guntas of Chikkabettahalli was allotted to the share of plaintiff and the plaintiff has been in possession and enjoyment of the above said property along with other properties allotted to her.
4. Further it is alleged that, the name of Narayanappa came to be entered in the RTC in respect of Sy.No. 28 and after his death his name has been continued in the RTC and within three years the husband of Plaintiff also died and the revenue entries have not been changed in the name of sons of Late. Narayanappa. After the partition the plaintiff has been continued in possession and enjoyment of the suit property till today. The defendants are totally strangers to the suit property. The defendant No.2 and her children have no title in respect of the 9 O.S. No.3745 / 2008 suit property and they lost their title and interest way back in the year 1975.
5. Further it is alleged that, the plaintiff is illiterate and innocent lady and she has been in possession of the suit property. However, the revenue entries have been continued in the name of Late. Naraynappa. Such being the factual position the first defendant with his supporters all of a sudden interfere with the plaintiffs peaceful possession and enjoyment of the property and trying to dispossess her from the suit property, claiming that the property belongs to him. The Plaintiff resisted the illegal acts of the defendant No.1 and he informed that he purchased the suit property from the defendant No.2 and her children under a registered Sale Deed dated:01.06.1990 etc.
6. Further it is alleged that, the defendant No.2 and her children have no right on suit property nor the title derives upon them, and on the basis of the alleged Sale Deed the First defendant had not acquired the title. Therefore, the said sale Deed 10 O.S. No.3745 / 2008 dated: 01.06.1990 is a fraudulent and concocted document and the same is not binding on the plaintiff.
7. Further it is alleged that, the first defendant obtained revenue entries behind the back of plaintiff and on the basis of the revenue entry without title the first defendant is trying to interfere with the plaintiffs peaceful possession and enjoyment of the suit schedule property.
8. Further it is alleged that, after filing of the above suit, to the dismay of the plaintiff she came to know that the first defendant based on the fraudulent and invalid sale deed dated: 01.06.1990 illegally and unlawfully executed a surreptitious, illegal, fraudulent, concocted , fabricated and cooked up General Power of Attorney in favour of defendant No.4 . Based on the said fraudulent and cooked up G.P.A, the fourth defendant sold different portion of the suit schedule property , terming it as site/s, in favour of defendants No.5 to 14 under different sale deeds. From a reading the same the fourth defendant on behalf of the first defendant, illegally sold the different site in favour of 11 O.S. No.3745 / 2008 defendant No.5 to 14. The said those sale deeds does not at all bind the plaintiff. However, the said sale deeds will cause unbearable and untold hardship, injury and damage to the title of the plaintiff to the suit schedule property.
9. According to the plaintiff, the cause action for the suit arose on 03.06.2008 when the defendant No.1 and his supporters have try to interfere with the possession of the plaintiff and further the plaintiff came to know the alleged transaction etc., and subsequent dates when the first defendant try to assert his illegal rights under the said alleged Sale Deed.
Mainly among these grounds it is prayed to decree the suit as prayed.
10. After the service of suit summons, the defendants No.1 to 3, 7 to 14 entered appearance through their counsel. The defendant No.1 filed his written statement separately. The defendant No.2 and 3 filed their written statement jointly. The defendant No.12 filed his written statement separately. The defendant No.1, 4 & 7 have filed his additional written statement. The defendant No.12 12 O.S. No.3745 / 2008 filed his additional written statement. But the defendant No.6 remained absent and hence he was placed exparte. Other defendants did not filed their written statement.
11. The defendant No.1 has admitted in the written statement that the said Patel Muniyappa had 3 children namely Narayanappa, Marappa and Chikka Narayanappa. During the lifetime of Patel Muniyappa constituted a joint Hindu Family and after his death, his three sons were continued in the said Joint Hindu Family for some time. Further it is admitted that in the year 1939-40 a registered partition came to be affected among three sons of Late Patel Muniyappa and as per the partition the property bearing Sy.No. 27 and 28 totally measuring 4 acres of land of Chikkabettahalli allotted to Marappa along with other Properties. The first son Narayanappa and last son Chikka Narayanappa were allotted their shares in the said partition. Further it is admitted that after the partition the sons of Patel Muniyappa were continued in possession and enjoyment of their respective shares without any interference of each other. The Second son Marappa gave birth to only daughter Thimmakka and 13 O.S. No.3745 / 2008 he died leaving behind his wife Puttamma and daughter Thimmakka as his legal representatives. Further it is admitted that after the death of Marappa his wife Puttamma sold the property bearing Sy.No. 27,28 totally measuring 4 acres along with other property by a registered Sale deed dated 06.01.1975 in favour of Narayanappa. The said Narayanappa gave birth to three sons namely Narasimhaiah, Anjanappa and Munegowda. Except admitting the above averments of the plaint the defendant No.1 has denied the rest of the averments of the plaint as false and untenable and called upon the plaintiff for strict proof of the same.
12. In the written statement the defendant No.1 has mainly contended that the property bearing Sy.No. 28 measuring 2 acres 13 guntas of Chikkabettahalli originally belong to one Patel Muniyappa. His legal heir, viz., one Puttamma sold the said land to one Patel Narayanappa under a registered sale deed dated 06.01.1975. The said property was his self acquired property and was its absolute owner. The said Patel Narayanappa has sold the suit schedule property for the sale consideration of Rs.60,000/- 14 O.S. No.3745 / 2008 by receiving the entire sale consideration which has been duly acknowledged by him. But however, the said Patel Narayanappa was not able to execute the sale deed in his favour (defendant No.1) and therefore executed a power of attorney dated 12.02.1990 in favour of one Thimmakka, Srinivas, Nagaraj and Krishnamurthy who are sons of late Venkataramanapa authorizing them to execute the sale deed in his favour. The children of Patel Narayanappa are witnesses to the said power of attorney.
13. Further it is contended that in pursuance of the above said power of attorney the absolute sale deed has been executed in his favour as per the registered sale deed dated 01.06.1990 registered as document No.682/90-91 registered in the office of Sub-Registrar, Yelahanka. He was thus put in possession of the schedule property as its absolute owner. He got the revenue entries made out his name in pursuance of the above said deed and also got the land converted for non-agricultural purpose from the Government. The schedule land was also the subject matter of the proceedings before the Urban land Ceiling Authorities 15 O.S. No.3745 / 2008 which has passed an order in favour of this defendant. Further he has formed a residential layout and formed several sites in the schedule property and has sold the same in favour of several persons. The said purchasers have all put up residential houses in the schedule property. The schedule property has thereby lost its nature and character of agricultural land and has been fully developed by the municipal authorities by providing all the civic amenities such as roads, drains, water supply, electricity etc.
14. Further it is contended that the plaintiff is fully acquiesced with all the above developments and has filed the above suit with malafide intention of making unlawful gain for herself in collusion with the other defendants.
15. Further it is contended that the market value of the suit schedule property is several crores of rupees and the court fee paid is insufficient and the suit is undervalued. Furher it is contened that the plaintiff is in not in possession of the suit schedule property and she has also not sought for the possession and declaration and hence, the suit is liable to be dismissed on 16 O.S. No.3745 / 2008 this ground alone. The suit is also barred by under Order 2 Rule 2 of CPC in view of O.S.No.6767 / 1997 said to have been filed earlier. Further the suit is also bad for non-joinder of necessary parties.
Mainly among these grounds it is prayed to dismiss the suit with exemplary costs.
16. In the written statement the defendant No.2 and 3 have admitted the relationship of the parties as set out in the plaint and registered partition deed took place in the year 1930-40 between the sons of late Patel Muniyappa and by virtue of the said partition the property bearing Sy.No.27 & 28 measuring 4 acres of land of Chikkabettahalli was allotted to Marappa along with other properties. Except admitting the above facts the defendant No.2 and 3 have denied the rest of the averments of the plaint as false and untenable and called upon the plaintiff for strict proof of the same.
17. In the written statement the defendant No.2 and 3 have contended that they being the legal representatives and absolute owner in possession of the schedule property enjoyed the right, 17 O.S. No.3745 / 2008 title and interest till the property was sold on 01.06.1990 in favour of defendant No.1. But, they denied the plaint averments that the said property in Sy.No. 27 & 28 measuring 4 acres was sold in the year 1975 by Puttamma the wife of Marappa in favour of Narayanappa.
18. Further it is contended that the plaintiff being stranger to the suit schedule property without any right, title and interest filed the present suit to cause irreparable loss and injury to them and false police complaint has been filed to harass them. The defendant filed suit in O.S.No.8841/99 against Anjanappa and Munigowda who are the sons of late Narayanappa for the illegal interference in the peaceful possession of property in the same village in Sy.No. 23/1. This Hon'ble court has passed judgment and decree in favour of the defendant.
19. Further it is contended that the plaintiff has not valued the court fees properly.
Mainly among these grounds it is prayed to dismiss the suit with exemplary costs.
18 O.S. No.3745 / 2008
20. In the written statement the defendant No.12 admitted the plaint averments that there has been a family partition in the year 1939-40 as averred in para 3 of the plaint and Sy.No. 27 and 28 of the Chkkahettahalli was allotted to one Marappa along with the other properties including the suit schedule property. Except admitting the above facts the defendant No.12 has denied rest of the averments of the plaint as false and untenable and called upon the plaintiff for strict proof of the same.
21. In the written statement the defendant No.12 has contended that a layout was formed comprising of survey Nos. 28, 27/3 etc. which is approved by the then Officer of the Doddabettahalli panchayat, Bangalore North Taluk on 31.01.1992. Layout plan was made after obtaining No Objection from Bangalore Development Authority and sanction for conversion of agricultural land by Deputy Commissioner Bangalore District. Further it is contended that on 08.08.1991 a sale deed was made and registered before the Sub-Registrar, Yelahank, on 05.10.1991, for a specific purpose of passage for both the parties, as well as 19 O.S. No.3745 / 2008 public for a sum of Rs.1,000/- pertaining to 8.5 guntas of land in Sy.No. 28. The said 8.5 guntas of land was purchased for the road which is part of the approved layout and now taken over by BBMP and the sale deed was that the land should be used only for road purpose and both parties have a right of passage in the said land sold.
Mainly among these grounds it is prayed to dismiss the suit with costs.
22. The defendant No.12 also filed additional written statement on 13.08.2018. In the additional written statement, the defendant No.12 has reiterated the above main averments of the written statement which he has already filed and apart from that he has contended that the suit is barred by limitation and the court fee paid by the plaintiff is insufficient.
Mainly among these grounds it is prayed to dismiss the suit with costs.
23. The defendant No.1, 4 & 7 have filed their additional written statement on 13.08.2013. In the addl. written statement the 20 O.S. No.3745 / 2008 defendant No.1, 4 & 7 have contended that the residential layout has been formed in the suit schedule property several years ago. There are about 50 sites formed in the suit schedule property which are all belonging to the respective purchasers who have put up construction over the same and each one of them are in peaceful possession and enjoyment of the respective sites. The above suit is hopelessly barred by limitation and not maintainable in law. The suit is also bad for non-joinder of necessary parties. Further it is contended that the suit is also undervalued and the court fee paid is highly insufficient. The court fee is required to be valued on the present market value of the suit schedule property under Section 7 and Section 38 of the Karnataka Court Fees & Suits Valuation Act, 1958.
Mainly among these grounds it is prayed to dismiss the suit with exemplary costs.
24. On the basis of the above pleadings of the parties the then Presiding officer of this court has framed the issues and additional issues as under:
ISSUES
1. Whether the plaintiff proves that Smt. Puttamma W/o Marappa has sold the property bearing Sy.No. 27 and 28 totally 21 O.S. No.3745 / 2008 measuring 4 acres along with other property under a registered sale deed dated 06.01.1975 in favour of Narayanappa?
2. Whether the plaintiff proves that a partition took place in the year 1990( wrongly mentioned as 1990 instead of 1999) and in the said partition the property bearing Sy.No. 28 measuring 2 acres 13 guntas Chikkabettahalli has been allotted towards her share?
3. Whether the plaintiff proves that the sale deed dated 16.09.1990( wrongly mentioned as 16.09.1990 instead of 01.06.1990) executed by defendant No.2 and her children in favour of defendant No.1 in respect of suit schedule property is null and void / cancel and not binding on the plaintiff?
4. Whether the plaintiff prove that she was in actual and lawful possession and enjoyment of the schedule property as on the date of suit?
5. Whether the plaintiff proves that defendants have interfered in the peaceful possession and enjoyment of the suit schedule property?
6. Whether the suit of the plaintiff is not maintainable?
7. Whether the suit of the plaintiff is barred by law of limitation?
8. Whether the suit of the plaintiff is bad for non joinder of the necessary parties?
9. Whether the court fee paid by the plaintiff is insufficient?
10. Whether the plaintiff proves that there arose a cause of action to file the suit against the defendants?
11. Whether the plaintiff is entitled to the relief of declaration as prayed for?
12. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
13. What order or decree?
ADDITIONAL ISSUES:
22 O.S. No.3745 / 2008
1. Does the plaintiff prove that after institution of this suit the defendant No.1 on the basis of a invalid sale deed dated 01.06.1990 has executed a illegal General Power of Attorney in favour of 4th defendant, on the basis of the same he has executed a registered sale deed in favour of defendant No.12 to 14 with respect to the suit schedule property as contended in para No.9(a) of the plaint?
2. Does the defendant No.12 to 14 prove that, they are the bonafide purchaser of their respective properties?
25. At time of evidence, the General Power of Attorney holder of the plaintiff by name Sri.Hanumantharayappa S/o late Narasimaiah examined himself as PW 1 and got marked 21 documents as Ex.p1 to P21 and closed their side evidence. On the other hand, the defendant No.4 examined himself as DW1 and got marked 19 documents as Ex.D1 to D19 and closed their side evidence. The defendant No.12 examined himself as DW 2 and got marked 7 documents as Ex.D20 to D26 ad closed his side evidence. Other defendants did not adduce evidence on their behalf. After the closure of the evidence of both the parties, the case was posted for arguments.
26. Heard the arguments.
27. My findings on the above issues are as under: 23 O.S. No.3745 / 2008
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Affirmative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Affirmative
Issue No.8 : In the Negative
Issue No.9 : In the Negative
Issue No.10: In the Negative
Addl. Issue No.1:In the Affirmative
Addl. Issue No.2: In the Negative
Issue No.11: In the Negative
Issue No.12: In the Negative
Issue No.13: As per final order for the following:
REASONS
28. ISSUE NO.1: On perusal of the pleadings of the parties
and also the oral and documentary evidence of both the parties , it is seen that the following facts are the admitted facts between the parties.
One Patel Muniyappa had three sons viz., (1) Patel Narayanappa (2)Marappa (3)Chikkanarayanappa. The said Patel Narayanappa had three sons viz (1) Narasimhaiah (Husband of plaintiff) (2) Anjanappa (3) Munegowda. The said Marappa had married with one Smt.Puttamma and they had a daughter by name Thimmakka (present defendant No.2). The above said Patel 24 O.S. No.3745 / 2008 Muniyappa, Patel Narayanappa, Marappa and Narasimhaiah (husband of Plaintiff) were no more.
29. In the plaint the plaintiff has stated that in the year 1939- 40 a registered Partition came to be affected among three sons of late Patel Muniyappa and as per the partition the property bearing Sy.No. 27 and 28 totally measuring 4 acres of land of Chikkabettahalli allotted to Marappa along with other properties. Further it is stated that after the death of Marappa his wife Puttamma sold the property bearing Sy.No. 27, 28 totally measuring 4 acre of land along with other property under a registered sale deed dated 06.01.1975 in favour of Narayanappa. In the oral evidence also the G.P.A holder of plaintiff by name Hanumantharayappa (PW1) has reiterated the same. At the time of evidence , the certified copy of the registered Sale Deed dated 06.01.1975 was got marked as Ex.P3 through PW-1.
In the written statement the defendant No. 1 and also the defendant No.12 have admitted the above plaint averments that in the year 1939-40 a registered Partition came to be affected among three sons of late Patel Muniyappa and as per the partition 25 O.S. No.3745 / 2008 the property bearing Sy.No.27 and 28 totally measuring 4 acres of land of Chikkabettahalli allotted to Marappa along with other properties. Further it is stated that after the death of Marappa his wife Puttamma sold the property bearing Sy.No. 27, 28 totally measuring 4 acre of land along with other property under a registered sale deed dated 06.01.1975 in favour of Narayanappa.
But the defendant No.2 and 3 have denied the plaint averments that after the death of Marappa, his wife Smt.Puttamma has sold the property in Sy.No. 27 and 28 measuring 4 acre in favour of Narayanappa. But however, in the written statement itself the defendant No.2 and 3 have admitted the plaint averments that in the year 1939-40 a registered partition came to be effected among three sons of late Patel Muniyappa and as per the partition the property bearing Sy.No. 27 and 28 totally measuring 4 acres of land of Chikkabettahalli allotted to Marappa along with other properties.
30. If we peruse the contents of Ex.P-3 certified copy of registered Sale Deed dated:06.01.1975, it shows that after the death of Marappa , his wife Smt. Puttamma has sold the property 26 O.S. No.3745 / 2008 bearing Sy.No.27 and 28 measuring 4 acre of Chikkabettahalli Village in favour of Patel Narayanappa along with other properties. In the oral evidence also Pw -1 has reiterated the same. Admittedly the said Sale Deed i.e, Ex.P 3 is a registered Sale Deed. The oral evidence of PW 1 coupled with the contents of Ex.P 3 document shows that after the death of Marappa, his wife Smt.Puttamma has sold the property bearing Sy.No. 27 and 28 measuring 4 acre of land of Chikkabettahalli Village, in favour of Patel Narayanappa. But even though the defendant No.2 and 3 have denied the above sale transaction , but in the cross examination of PW 1 a suggestion was put during stay of defendant no.2 in their house his father obtained her thumb impression on Ex.P 3 by playing fraud on her. But PW 1 denied the said suggestion. Even though the learned counsel for defendant No.2 and 3 has cross examined PW 1, but there is no worth has been elicited from his evidence to impeach his veracity. That apart the defendant No.2 and 3 have not at all adduced any oral or document any evidence in support of their contention in order to rebut the above oral and documentary evidence of plaintiff side. In the circumstances, it is stated that , the above 27 O.S. No.3745 / 2008 contention of the defendant No.2 and 3 that after the death of Marappa, his wife Smt.Puttamma has not sold the property bearing Sy.No. 27 and 28 totally measuring 4 acre of land under a registered Sale Deed dated: 06.01.1975 in favour of Patel Narayanappa has no force at all. On the contrary , the plaintiff has proved the fact that after the death of Marappa, his wife Smt.Puttamma has sold the property bearing Sy.No. 27 and 28 totally measuring 4 acre of land under a registered Sale Deed dated: 06.01.1975 (Ex.P 3) in favour of Patel Narayanappa.
Hence, in view of all these reasons, I answer the above issue accordingly.
31. ISSUE NO.2: In the plaint the Plaintiff has contended that the said Patel Narayanappa died leaving behind his three sons viz., Narasimhaiah (husband of Plaintiff, Anjanappa and Munegowda). The said Munegowda and his wife Ramakka were dead with out any issues. The said Narasimhaiah and Anajanappa become the successors of the estate of Late Narayanappa.
28 O.S. No.3745 / 2008
Further it is contended by the plaintiff that the said Anjanappa who is the brother her husband was separated from the joint family by effecting oral partition in the year 1999. As per the Partition the property bearing Sy.No. 28 measuring 2 acre 13 guntas of Chikkabettahalli was allotted to her share and she has been in Possession and enjoyment of the said property along with other properties allotted to her. In the oral evidence also PW 1 has reiterated the same.
But in the written statement the defendant No.1, defendant No.2 and 3 and defendant No.12 have specifically denied the above averments of the plaint. Therefore, in view of the same, the onus of proof lies upon the plaintiff to establish the fact that the said Anjanappa who is the brother her husband was separated from the joint family by effecting oral partition in the year 1999. As per the Partition the property bearing Sy.No. 28 measuring 2 acre 13 guntas of Chikkabettahalli was allotted to her share and she has been in Possession and enjoyment of the said property along with other properties allotted to her.
Even though the plaintiff has set up the above contention that the suit schedule property i.e., 2 acre 13 guntas in Sy.No. 28 29 O.S. No.3745 / 2008 was allotted to her in the year 1999 in a oral partition took place between the said Anajanappa and herself , but except the oral testimony of Pw1 there is no other Corroborative evidence is found on record on behalf of plaintiff to show that in the said oral partition she was allotted the suit property. Even though the Plaintiff has produced and got marked the earlier RTC extracts pertaining to suit Sy.No. 28 totally measuring 6 acre 39 guntas excluding Kharab land i.e., Ex.P 4 to P 9 , but in the said revenue records the name of the plaintiff is not at all present regarding the alleged allotment of suit property in her favour in the said oral partition as contended by her in the plaint. If at all such oral partition was took place between her and the said Anjanappa and the suit property was allotted to her share as she contended , in such circumstances, in the revenue records like RTC extracts such entry with regard to allotment of the suit property in favour of the plaintiff would have finds a place in proof of such oral partition. But there is no such entries are found in the above said revenue records in order to show that the suit property was allotted to her share in the oral partition took place in the year 1999.
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In this regard , at the time of argument the learned Counsel for the defendant No.1,4 and 7 would submits that as the plaintiff has taken the above contention that in the said oral partition the suit property was allotted to her share, in such circumstances the plaintiff ought to have stepped into the witness box and adduce evidence in that regard and available for cross examination. In support of his contention , the learned counsel for the defendant No.1 ,4 and 7 has placed reliance on the following decisions.
1) (2005) 2 SCC 217 - JANKI VASHDEO BHOJWANI AND ANOTHER V/S INDUSIND BANK LTD., AND OTHERS
2) (1999) 3 SCC 573 - VIDHYADHAR V/S MANIKRAO AND ANOTHER.
In the above cited JANKI VASHDEO BHOJWANI 's case in Para No. 13 of the Judgment the Hon'ble Supreme Court has stated as under:
"Order 3 Rules 1 and 2 CPC empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3, Rules 1 and 2 CPC confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by 31 O.S. No.3745 / 2008 him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
In the above cited VIDHYADHAR's case in Para No. 17 of the judgment the Hon'ble Supreme court has stated as under:
"17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side , a presumption would arise that the case set up by him is not correct"----------
32. If we apply the ratio laid down in the above decisions to the facts and circumstances of the present case, it is seen that ,as the plaintiff claims or asserts in the plaint that the said Anjanappa who is the brother her husband has separated from the joint family by effecting oral partition in the year 1999 and in the said oral partition she was allotted the suit schedule property towards her share, in such circumstances , the Plaintiff alone has to adduce evidence by stepped into the witness box and available for cross examination by the other side. Because the alleged oral partition personally known to her but not to her G.P.A holder i.e., PW 1 Hanumantharayappa (Son of plaintiff). Therefore, in view of the above reasons , it is stated that the above contention of plaintiff cannot be accepted and hence the mere oral evidence of 32 O.S. No.3745 / 2008 PW 1 is insufficient to prove the above contention of Plaintiff. The ratio laid down in the above cited decisions are aptly applicable to the facts and circumstances of the present case.
Hence, in view of all these reasons it is held that the plaintiff has failed to prove that in an oral partition took place in the year 1999 between the said Anjanappa and herself the suit property was allotted to her share as contended in the plaint.
Hence, in view of all these reasons, answer the above issue accordingly.
33. ISSUE No.3: In the plaint the plaintiff has contended that the defendants are total strangers to the suit schedule property. The defendant No.2 and her children have no title in respect of the suit property and they lost their title and interest way back in the year 1975. Further it is contended that the defendant No. 2 and her children have no right over the suit property nor the title derives upon them. On the basis of the alleged Sale Deed dated 01.06.1990 the first defendant had not acquired title to the suit property and the said Sale Deed is a fraudulent and concocted document and the same is not binding on her. Further it is 33 O.S. No.3745 / 2008 contended that based on the fraudulent and invalid Sale Deed dated 01.06.1990 the defendant No.1 has fabricated the G.P.A in favour of defendant No.4 and the 4th defendant sold different portion of the suit property i.e., sites in favour of defendant No.5 to 14 under different Sale Deeds illegally and therefore the said Sale Deeds are not binding on her.
In prayer No.(a) the plaintiff has sought for to declare that the Sale deed dated 01.06.1990 executed by defendant No.2 and her children in favour of first defendant in respect of the suit property is null and void /cancel and not binding on her and in prayer No.(a) i She sought for to declare that the Sale deeds which are mentioned in the said prayer ( Executed by defendant No.4 as a power of Attorney holder of defendant No.1 in favour of defendant No.5 to 14) are not binding on her. In the oral evidence also Pw 1 has reiterated the above contention of the plaintiff.
34. But in the written statement the defendant No.1 has mainly contented that after the death of Patel Muniyappa, his legal heir i.e., Smt. Puttamma (Wife of Patel Muniyappa) has sold the property bearing Sy.No. 28 measuring 2 acre 13 guntas situated 34 O.S. No.3745 / 2008 Chikkabettahalli Village (present suit schedule property) in favour of one Patel Narayanappa under a registered Sale Deed dated 06.01.1975. The said property was his self acquired property. The said Patel Narayanappa has sold the suit schedule property for a Sale Consideration of Rs.60,000 by receiving the entire Sale consideration which was duly acknowledged by him. But however the said Patel Narayanappa was not able to execute the Sale Deed in his favour (defendant No.1) and therefore he executed a Power of Attorney dated 12.02.1990 in favour of one Thimmakka , Srinivas , Nagaraj and Krishnamurthy who are the wife and children of late Venkataramanappa, authorizing them to execute the Sale Deed in his favour. The children of Patel Narayanappa are witnesses to the said power of attorney. Further it is contended that in pursuance of the said Power of Attorney an absolute Sale Deed dated: 01.06.1990 was executed in his favour and he was put in possession of suit property as its absolute owner. In the oral evidence also the defendant No.4 (PW1) has reiterated the same.
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35. The above said Thimakka and her sons as stated by defendant No.1 in his written statement are none other than the present defendant No.2 and 3 and the other sons of defendant No.2. But in their separate written statement the defendant No.2 and 3 though denied the Para No.7 of the plaint averments, but they have not at all admitted that as contended by the defendant No.1 they and the other sons of defendant No.2 have executed the Sale Deed in favour of defendant No.1 pertaining to the suit property as power of attorney holders of the said Patel Narayanappa.
36. As the defendant No.1 claims his title over the suit schedule property based on the said registered Sale Deed dated 01.06.1990 alleged to have executed by the defendant No.2 and 3 and other children of defendant No.2 as Power of attorney holders of the said Patel Narayanappa , in such circumstances, the initial onus of proof lies upon the defendant No.1 to establish the above contention as taken by him in his written statement.
37. Even though the defendant No.1 has taken the above contention in his written statement regarding his alleged title over 36 O.S. No.3745 / 2008 the suit schedule property based on a registered Sale Deed dated 01.06.1990, but at the time of evidence the defendant No.1 has failed to stepped into the witness box and not adduced any evidence in support his above contention. In this case the defendant No.4 himself adduced his oral evidence by filing affidavit and reiterated the above averments the written statement of defendant No.1 regarding the suit property acquired by the defendant No.1 under a registered Sale Deed dated : 01.06.1990. The fourth defendant was examined as DW 1. The alleged original G.P.A dated 12.02.1990 executed by the said Patel Naryanappa in favour of defendant No.2 Thimmakka and her Children pertaining to the suit property was got marked as Ex.D 1 through DW 1. At the time of evidence, the alleged certified copy of registered Sale Deed dated 01.06.1990 was got marked as Ex. P 13 through PW 1.
38. In the written statement itself the defendant No.1 has admitted that after the death of Marappa, his wife Smt. Puttamma had sold the property bearing Sy.No. 27, 28 totally measuring 4 acre (which includes the present suit schedule property) along 37 O.S. No.3745 / 2008 with other properties under a registered Sale Deed dated 06.01.1975 in favour of Patel Narayanappa.
Even though the defendant No. 2 and 3 have denied the above plaint averments in their written statement , but while giving findings on issue No.1 this court has already hold that as contended by the plaintiff after the death of Marappa his wife Smt. Puttamma had sold the property bearing Sy.No. 27 and 28 totally measuring 4 acre (which includes the suit schedule property) along with other properties under a registered Sale Deed dated 01.06.1975 in favour of Patel Narayanappa. Therefore, the above contention of the defendant No.2 and 3 has no force at all. From this it can be stated that during the life time of Patel Narayanappa he was the owner of property bearing Sy.No. 27 and 28 totally measuring 4 acre (which includes the suit schedule property) along with other properties as he purchased under a registered Sale Deed dated 01.06.1975. Thus , it can be stated that the said Patel Narayanappa was the owner of the suit schedule property.
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39. As in the present case the defendant No.1 has mainly contented that the said Patel Narayanappa has sold the suit schedule property in his favour for a Sale Consideration of Rs.60,000 and he received the entire Sale Consideration amount from him and that as the Patel Narayanappa was not able to executed the Sale Deed in his favor and there fore he executed a power of attorney dated 12.02.1990 in favour of the present defendant No. 2 and 3 and the other children of defendant No.2 authorizing them to executed the Sale deed in his favour and that in pursuance of the said G.P.A the power of attorney holdera have executed a registered Sale Deed dated 01.06.1990 in his favour and thereby he is the absolute owner of the suit schedule property , in such circumstances, heavy burden lies upon the defendant No.1 to prove the above contention.
But for the reasons best known to him the defendant No.1 has failed to adduce any evidence on his behalf and not available for cross examination of the other side.
40. According to the defendant No.1 , under Ex.P 13 registered Sale Deed dated 01.06.1990 he purchased the suit property from 39 O.S. No.3745 / 2008 the said Patel Narayanappa through his Power of Attorney holder i.e., the present defendant No. 2 and 3 and the other children of defendant No.2. Therefore, Ex.P 13 document assumes significance in the present case with regard to the above contention of the defendant No.1. If we carefully peruse the entire contents of Ex.P 13 the certified copy of registered Sale Deed dated 01.06.1990 , as per this document, the present defendant No. 2 and 3 and other children of defendant No.2 have executed this Sale Deed in favour of the present defendant No.1 pertaining to the suit schedule property directly by them as absolute owners of the suit schedule property having right over the same, but not in the capacity of the power of attorney holders of the said Patel Narayanappa. If at all this Ex.P 13 Sale Deed was executed by the defendant No.2 and 3 and other children of defendant No.2 as power of Attorney holders of Patel Narayanappa who was the original owner of the suit property, naturally in such circumstances in Ex.P 13 document there must be an averments that the defendant No.2 & 3 and other children of defendant No.2 are executing this document in favour of defendant No. 1 pertaining to suit schedule property as the power of Attorney 40 O.S. No.3745 / 2008 holders of the said Patel Narayanappa. But no where in Ex.P 13 document such averments or wording is found to that effect. Moreover, there is no reference with regard to the execution of Ex.D 1 unregistered G.P.A dated 12.09.1990 alleged to have executed by the said Patel Narayanappa in favour of defendant No. 2 and 3 and the other children of defendant No.2 to execute a Sale Deed in favour of defendant No.1 pertaining to the suit property on his behalf. Therefore, from all these facts and circumstances of the case and the mere bare perusal of the contents of Ex.P 13 document itself clearly shows that this Sale deed was not at all executed by the said Patel Narayanappa through his G.P.A holders in favour of defendant No. 1 , but this Sale Deed was directly executed by the present defendant No.2 and 3 and the other children of defendant No. 2 as the owners of the suit schedule property based on their alleged right over the same.
As already stated , the defendant No.2 and 3 have not at all admitted the contention of the defendant No.1 that they have executed Ex.P 13 document in favour of defendant No.1 as power 41 O.S. No.3745 / 2008 of Attorney holders of the said Patel Narayanappa. The defendant No. 2 and 3 have also not adduced any evidence on their behalf.
When the defendant No.1 has taken the above contention in his written statement as to how he acquired the suit schedule property under Ex.P 13 document, in such circumstances, he ought to have entered into the witness box and adduce his evidence personally before the court touching the above said contention and make himself available for cross examination by the other side. But he has not done so. Therefore, in view of the facts and circumstances of the case and for the reasons as stated supra, adverse inference has to be drawn against the defendant No.1.
41. As per the contents of Ex.D 1 unregistered G.P.A dated 12.02.1990 the said document was sworn to before one Sri.K.M.Manamohan, Advocate and Notary, K.H. Double road, Bengaluru. In this case the defendant No.1 has not at all adduced any evidence in order to prove the contents of Ex.D 1 document.
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At the time of evidence , at the instance of plaintiff this court has issued commission to examine Sri.K.M.Manamohan, Advocate and Notary, K.H. Double road, Bengaluru. It is seen from the records that the court commissioner has recorded the evidence of the said Sri.K.M.Manamohan, Advocate and Notary and placed the same before the court. The deposition of Sri.K.M.Manamohan (CW-1) Advocate and Notary shows that the said witness was examined in chief by the counsel for plaintiff and the counsel for defendant No.1, 4 and 7 has cross examined him.
If we peruse the entire evidence of CW 1, it shows that the certified copy of Ex.D 1 was shown to the CW 1. On seeing the said document he has stated that the signature present in the said document is not belong to him. Even in the cross examination also when the learned Counsel for defendant No. 1 , 4 and 7 has shown the certified copy of Ex.D 1 document, again on seeing the same he has stated that the signature present in it is not belong to him. Even though the learned counsel for defendant No.1 , 4 and 7 has cross examined CW 1 , but there is no worth has been elicited from his evidence to impeach his veracity. Admittedly CW-1 is not a rustic person. On seeing the 43 O.S. No.3745 / 2008 certified copy of Ex.D1 document this witness has categorically denied the presence of his signature in the said document. Therefore, from all these reasons it is stated that the defendant No. 1 has failed to prove the execution of Ex.P13 and Ex.D1 document in this case. The mere oral evidence of Defendant No.4 i.e., DW 1 is not helpful to the case of the defendant No.1. Even the mere oral evidence of defendant No.12 (DW-3) also not helpful to the case of defendant No.1 as DW 3 has stated in his oral evidence with regard to purchase of 8 ½ guntas of land in the suit property by him from the defendant No.1 through his power of attorney holder- defendant No.4. That apart, in the cross- examination the defendant No.4 (DW 1) at page No.7 has stated that it is true that as on the date of execution of sale deed by Thimmakka and Krishnamurthy and her family members on 06.01.1991 they were not in possession of the suit land. This itself clearly shows that the present defendant No.2 and 3 and other children of defendant No.2 who executed the alleged sale deed i.e. Ex.P13 in favour of defendant No.1 pertaining to the suit property were not at all in possession of the said property at that time. Therefore, from all these reasons it is held that the 44 O.S. No.3745 / 2008 registered sale deed dated 01.06.1990 executed by the defendant No.2 and 3 and other children of defendant No.2 in favour of defendant No.1 pertaining to the suit property is invalid document and it has no sanctity in the eye of law, because the mother of defendant No.2 by name Smt.Puttamma had already sold the property bearing Sy.No. 27 and 28 totally measuring 4 acres of land (which includes present suit schedule property) to the said Patel Narayanappa under Ex.P3 registered sale deed dated 06.01.1975. When the suit property was already sold under Ex.P3 document to the said Patel Narayanappa by the mother of present defendant No.2, by ignoring the said registered sale deed which is in force as on the date of execution of Ex.P13 document, whatever the subsequent sale deed executed by defendant No.2 and 3 and the other children of defendant No.2 in favour of defendant No.1 under Ex.P13 document has no sanctity in the eye of law and that under the said document, the defendant No.1 do not confer any valid title over the suit schedule property. In the circumstances it is stated that Ex.P13 registered sale deed dated 01.06.1990 executed by defendant No.2 and 3 and other children of defendant No.2 in favour of defendant No.1 pertaining 45 O.S. No.3745 / 2008 to the suit property is an invalid document. Thereby the said sale deed is not binding on the plaintiff, as the plaintiff is one of the successor of the said Patel Narayanappa in which she is the daughter in law of the said Narayanappa.
Hence, in view of all these reasons, I answer the above issue accordingly.
42. ISSUE No.4: In the plaint the plaintiff has stated that Sri. Anjinappa who is the brother of her husband was separated from the joint family by effecting oral partiton in the year 1999. As per the oral partition the property bearing Sy.No.28, measuring 2 acres 13 guntas of Chikkabettahalli (present suit property) was allotted to her share and she has been in possession and enjoyment of the suit property. In the oral evidence also the General Power of Attorney of the plaintiff i.e. PW 1 has reiterated the same.
Even though the Plaintiff has stated in the plaint and also in the oral evidence that she has been possession and enjoyment of the suit schedule property as the suit property was allotted to her share in the oral partition took place in the year 1999, but 46 O.S. No.3745 / 2008 while giving findings on issue No.2 this court has already hold that the plaintiff has failed to establish the said contention that in an oral partition took place in the year 1999 the suit property was allotted to her share. Issue No.2 is held in the Negative. Ex.P4 to P9 are the RTC extracts pertaining to the suit Sy.No. 28. But in the said revenue documents the name of the plaintiff is not at all mentioned both in col. No.9 and 12(2). If at all the plaintiff has been in possession and enjoyment of the schedule property as she contended in the plaint, her name would have finds a place both in col. No.9 and 12(2) of the RTC extracts. But the plaintiff has not at all produced any other revenue documents in order to show that she has been in possession and enjoyment of the suit schedule property since the time of alleged oral partition took place in the year 1999. In the cross-examination itself PW1 has admitted that, "it is true that the suit property is not standing in the name of my mother Muniyamma". Except the oral testimony of PW1, there is nothing on record on behalf of plaintiff side in order to prove the fact that the plaintiff has been possession and enjoyment of the suit schedule property as on the date of suit. Therefore, the plaintiff has failed to prove her lawful possession 47 O.S. No.3745 / 2008 and enjoyment of the suit schedule property as on the date of suit.
Hence, in view of all these reasons, I answer the above issue accordingly.
43. ISSUE No.5: In the plaint the plaintiff has stated that the cause action for the suit arose on 03.06.2008 when the defendant No.1 and his supporters have try to interfere with her possession and further the plaintiff came to know the alleged transaction etc., and subsequent dates when the first defendant try to assert his illegal rights under the said alleged Sale Deed. In the oral evidence also PW 1 has reiterated the same.
Even though the plaintiff has stated the alleged interference of the defendants and PW 1 has reiterated the same in his in chief evidence, while giving finding on issue No.4, this court has already hold that the plaintiff is not at all in possession and enjoyment of the suit schedule property since prior to the date of filing of the suit. Issue No.4 is held in the Negative. In the circumstances, the question of alleged interference by the defendants as alleged by the plaintiff in the plaint does not arise. 48 O.S. No.3745 / 2008
Hence, I answer the above issue accordingly.
44. ISSUE No.6: In para No.10 of the written statement the defendant No.1 has contended that the present suit is also barred by Order II Rule 2 CPC in view of the suit in O.S.No.6767 / 1997 which was filed earlier.
In para No.4 of the plaint the plaintiff has stated that she field a suit in O.S.No.6767/1997 against the brother of her husband and others for partition and separate possession of the joint family properties. The schedule property is also subject matter of the said suit. In view of the settlement between the parties, the said suit came to be withdrawn.
In this regard, the plaintiff has got marked the copy of order sheet in O.S.No.6767/1997 as Ex.P12 through PW 1. The contents of Ex.P12 document shows that the present plaintiff and others have filed the said suit earlier for the relief of declaration i.e. the plaintiff's legitimate share and separate possession of the properties described in the schedule by declaring the sale transactions (words are not legible) as null and void etc. The defendants of that suit are the brothers of the husband of the 49 O.S. No.3745 / 2008 present plaintiff and the wife of Munegowda. As per the last day order sheet dated 16.04.1999, the learned counsel for plaintiff has filed a memo stating that the matter is settled out of court and hence, the suit may be dismissed as settled out of court. Hence, the said suit was dismissed as settled out of court. It is not known to the court as to who are all the other defendants in the said suit. Therefore, in such circumstances, now it is difficult for this court to say that the suit of the plaintiff is barred under Order II Rule 2 of CPC. More over, the defendant No.1 has not adduced any evidence on his behalf, except filing the written statement. In the circumstances, it is stated that the defendant No.1 has failed to prove the said contention by placing material evidence.
Hence, I answer the above issue accordingly.
45. ISSUE No.7: In the written statement the defendant No. 1 has contended that the suit is barred by limitation and not maintain in law. The defendant No. 2 and 3 also contended in the written statement that the suit is barred by limitation as the same 50 O.S. No.3745 / 2008 is filed after a lapse of 18 years from the date of registered document and cause of action.
At the time of Arguments, the learned counsel for the defendant No. 1 ,4 and 7 would submits that Ex.P 13 registered Sale Deed was executed in favour of defendant No.1 pertaining to the suit property on 01.06.1990 and that after a lapse of about 18 years the Plaintiff has filed this suit for seeking declaration that the said Sale Deed is null and void and not binding on her and therefore the suit is barred by limitation as the plaintiff has not filed the suit within the period of three years from the date of the said Sale Deed.
At the time of arguments the learned counsel for the defendant No. 1,4 and 7 has cited the decision of our Hon'ble High Court, reported in ILR 2008 KAR 2245 - BINNY MILL LABOUR WELFARE HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., V/s D.R.MRUTHYUNJAYA ARADHYA.
In the above decision at Para No. 37 of the judgment our Hon'ble High Court has stated as under:
"37. ---------"Therefore, the law provides for cancellation of such instruments which are also non-est, but which are in existence as a fact physically to get over the effect of such instrument. Once such an instrument is registered, the said 51 O.S. No.3745 / 2008 registration has the effect of informing and giving notice to the world at large that such a document has been executed. Registration of the document is a notice to all the subsequent purchasers or encumbrances of the same property. The Doctrine of constructive notice is attracted. Therefore, the effect of registration of an instrument not only affects the rights of the parties to the instrument but also affects parties who may claim under them" ---.
46. Bearing in mind the ratio laid down in the above D.R.MRUTHYNJAYA ARADHYA's case, now it is just and reasonable to turn to the case on hand.
Admittedly Ex.P 13 is a registered document which was registered in the office of the concerned Sub-registrar on 01.06.1990 pertaining to the suit property. Ex.P8 Copy of RTC extract pertaining to the suit Sy.No. 28 at Column No.9 shows that the name the present defendant No.1 has been entered to an extent of 2 acre 13 guntas as per MR No.3/1990-91. Even in the column No. 12(2) of the said RTC extract for the year 1991-92 the name of the present defendant No.1 has been entered to an extent of 2 acre 13 guntas (suit schedule property). This shows that soon after execution of Ex.P 13 document in favour of defendant No.1 the mutation was effected in his name pertaining to the suit property and his name has been entered in the RTC extract in the 52 O.S. No.3745 / 2008 year 1991-92 itself. Apart from this , Ex.D 8 official memorandum issued by the concerned Deputy Commissioner shows that 2 acre of land in suit Sy.No. 28 was converted for non agricultural purpose in the name of defendant No.1. Ex.D 9 Official Memorandum also shows that the remaining 13 guntas of land in suit Sy.No.28 was also converted for non agriculture purpose in the name of defendant No.1. Ex.D 5 Demand register Extract for the year 1991-92 also shows that 2 acre of land in suit Sy.No. 28 was converted for non agriculture purpose in the name of defendant No.1. Ex.D 2 Assessment extract also reveals the same. Ex.D 6 Demand Register Extract for the year 1991-92 also shows that an extent of 13 guntas of land in suit Sy.No. 28 was converted for non agricultural purpose in the name of defendant No.1. Ex.D 10 is an approved layout plan regarding sites formed by the defendant No.1 in the suit schedule property. All the above said documents of plaintiff and defendants side collectively shows that the Plaintiff has indirectly know all these developments took place pertaining to the suit property after the Sale Deed dated:
01.06.1990 executed in the name of defendant No.1 by the defendant No.2 and 3 and others, though the said Sale Deed is an 53 O.S. No.3745 / 2008 invalid document. The above facts and circumstances also shows that the plaintiff has not questioned the defendant No.1 regarding the developments made by him in the suit property after the said Sale Deed dated: 01.06.1990. Now by filing this suit the plaintiff questioned the said Sale Deed dated 01.06.1990 (Ex.P 13) which is in the name of defendant No. 1. In the plaint the plaintiff has not clearly stated on which specific date or time she first of all came to know the Ex.P 13 Sale Deed dated 01.06.1990 which is stood in the name of defendant No.1 pertaining to the suit property. The Plaintiff is silent about this aspect in the plaint.
Moreover, the plaintiff has not stepped into the witness box and failed to adduce evidence personally touching the plaint averments. As the Plaintiff has sought for prayer No.(a) to declare that the Sale Deed dated 01.06.1990 executed by defendant No. 2 and her children in favour of defendant No. 1 in respect of the suit schedule property as null and void/cancel and not binding on her , in such circumstances, she ought to have filed this suit within 3 years from the date of the said Sale Deed dated 01.06.1990. But the plaintiff has filed this suit after a lapse of about 18 years from the date of Sale Deed dated 01.06.1990. 54 O.S. No.3745 / 2008 Thereby, it is held that the suit of the Plaintiff is hopelessly barred by limitation as the plaintiff has not filed this suit within the period of limitation of 3 years as per Article 58 & 59 of the limitation Act. The ratio laid down in the above cited decision is aptly applicable to the present case.
Hence, in view of all these reasons, I answer the above issue accordingly.
47. ISSUE No.8: In the written statement the defendant No.1 has contended that the suit is also bad for non joinder of necessary parties.
At the time of arguments, the learned counsel for the defendant No. 1,4 and 7 would submits that as 4 acre of land in Sy.No. 27 and 28 was purchased by Patel Narayanappa from Smt. Puttamma under a registered Sale Deed dated 06.01.1975 (Ex.P
3), after the death of the said Narayanappa, while filing this suit the plaintiff ought to have arrayed the other legal heirs of Narayanappa i.e., Anjanappa and Munegowda who are the sons of Late Narayanappa and hence the suit bad of non joinder of necessary parties.
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48. In the plaint the plaintiff has stated that Narayanappa died leaving behind his three sons. His one of the sons by name Munegowda and his wife Ramakka were died with out issues. She is the wife of Late.Narasimahiah who is one of the sons of Narayanappa. So for as with respect to the said Anjanappa is concerned , it is the case of the plaintiff that he separated from the joint family by effecting oral partition in the year 1999 and in the said partition the suit property fallen to her share. When that is the contention of the Plaintiff in the plaint, it cannot be said that the suit is bad for non joinder of necessary parties.
Hence, I answer the above issue accordingly.
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49. ISSUE No.9: In the written statement the defendant No. 1 has contended that the market Value of the suit property is several Crores of rupees and the court fee paid on the plaint is insufficient and the suit is under valued.
At the time of arguments, the learned counsel for the defendant No.1 , 4 and 7 would submits that as the Plaintiff sought for declaration that the Sale deed dated 01.06.1990 in respect of the suit property is null and void /cancel not binding on her, she ought to have paid the court fee on the market value of the suit property as on the date of the presentation of the plaint. But the court fee paid by the Plaintiff is insufficient. In support of his contention he relied upon the decision of our Hon'ble High Court, reported in ILR 2012 KAR 3558 - MR.V.PRABHAKAR V/S MR.K.RAJA AND OTHERS.
In the above decision in Para No.15 & 16 of the Judgment, our Hon'ble High Court has stated as under:
"15. Section 7 of the Act provides for determination of the market value of the property for the purpose of Section 38 and certain other provisions of the Act. Sub-Section (1) of Section 7 states that where the fee payable under the Act depends on the market value of any property, such value 57 O.S. No.3745 / 2008 shall be determined as on the date of presentation of the plaint.
16. Thus, it is clear that in a suit for cancellation of the sale deed, the court fee has to be computed on the basis of the market value of the property, which is the subject matter of the sale deed in question as on the date of the presentation of the plaint. The market value has to be determined in accordance with Section 7 of the Act."
50. At this Juncture, I have referred the decision of our Hon'ble High Court, reported in ILR 2015 KAR 4900 -
SRI.JAWAREGOWDA AND ANOTHER V/S SRI.BASAVARAJU N.J. AND OTHERS.
In a similar circumstances, while dealing with Section 38 and Section 7 of the Karnataka Court Fees and Suits Valuation Act , 1958, by referring the judgment of the Hon'ble Supreme Court reported in (2010) 5 SCC 622 - SATHEEDEVI V/S PRASANNA AND ANOTHER, at Para No.16 & 17 of the Judgment our Hon'ble High Court has stated as under:
"16. Therefore, if the suit is to be valued under Section 24(a) and (b) of the Act, it is on the basis of the market value of the property. If the suit is to be valued under Section 38 of the Act, the fee shall be computed on the value of the subject matter of the suit or the instrument. In order to find out the value of the subject matter of the instrument, we have to find out what is the value mentioned in the 58 O.S. No.3745 / 2008 instrument. In other words, what is the consideration for which that instrument is executed. If the instrument is a sale deed or a mortgage deed or a lease deed, the consideration would be mentioned therein. But in the case of a deed of settlement and deed of gift or a deed of trust, the consideration would be love and affection and the blood relationship, which cannot be valued in terms of money. That is the reason why the Apex Court in the aforesaid judgment has categorically held that the value of the subject matter of the instrument does not mean the market value of the subject matter of the instrument. That is the reason why the Legislature consciously has not used the word 'market value' in Section 38 of the Act whereas the said word is explicitly used in Section 24 of the Act. If the word 'market value' is read into Section 38 of the Act, then it amounts the Court rewriting the Section or recasting or reframing the provisions of law, which is not permissible.
17. It is well settled proposition of law that the Court cannot add words to a statute or read words which are not therein. Even if there is a defect or omission in the statute, the Court cannot correct the defect or supply the omission. Therefore, Section 38 of the Act when it uses the words 'value of the subject matter of the suit' it is the subject matter of the instrument i.e., the consideration mentioned in the instrument which is to be taken into consideration while valuing the suit for the purpose of the Court fee under Section 38 of the Act and not the market value of the property."
51. In the present case along with the plaint the plaintiff has filed the valuation slip. As per the Valuation slip the Plaintiff has calculated the court fee U/s 38 of the Karnataka Court Fees & Suits Valuation Act, 1958 for a sum of Rs.60,000/- (The Sale Consideration amount of Rs.60,000/- mentioned in Ex.P 13 59 O.S. No.3745 / 2008 registered Sale Deed dated 01.06.1990) and paid the Court fee of Rs.3,750/- for the relief of declaration and Rs.25/- for the relief of injunction.
With due respect to the decision of our Hon'ble High Court in the above cited V.Prabhakar's Case, it is stated that in the similar circumstance while dealing with Section 7 & 38 of the said Act, Our Hon'ble High Court has rendered latter decision in the above referred Jawaregowda's case. This court has to follow the ratio laid down in the above latter case (Jawaregowda's Case) while applying the principles to the present case with regard to the payment of court fee is concerned. In the above referred Jawaregowda's case our Hon'ble High Court has held that for the purpose of section 38 of the act, that the value of subject matter of the instrument has to be taken into consideration and not the market value of the subject matter of the suit. Therefore, in view of the ratio laid down in the above referred Jawaregowda's case, it is stated that the court fee calculated by the Plaintiff in the valuation slip under section 38 of the said act on the basis of the value of the property mentioned in the instrument (Ex.P 13) is correct and thereby the court fee paid by the plaintiff as stated 60 O.S. No.3745 / 2008 above is not insufficient as contended by the defendant No.1 in the written statement. Therefore, the above contention of the defendant No.1 has no force at all.
Hence, I answer the above issue accordingly.
52. ISSUE NO.10: According to the Plaintiff the cause of action for the suit arose on 03.06.2008 when the defendant No. 1 and his supporters tried to interfere with her possession and further she came to know the alleged transaction etc., and subsequent dates when the 1st defendant tried to assert his illegal rights under the alleged Sale Deed. In the oral evidence also PW 1 has reiterated the same.
While giving findings on Issue No.7 this court has already hold that the suit of the Plaintiff is hopelessly barred by limitation as the plaintiff has filed the suit after a lapse of about 18 years from the date of Ex.P 13 Sale Deed dated 01.06.1990. In the circumstances, it is stated that there is no cause of action accrued to the plaintiff to file this suit in the year 2008 for seeking such a declaration as sought in the prayer.
Hence, I answer the above issue accordingly.
61 O.S. No.3745 / 2008
53. Addl.Issue No.1 and 2 : In para No. 9(a) of the plaint the Plaintiff has stated that based on the invalid Sale Deed dated 01.06.1990 the defendant No.1 has executed G.P.A in favour of defendant No.4 and based on the said G.P.A the defendant No.4 has sold different portion of the suit property i.e., in favour of defendant No.5 to 14 under different Sale Deeds illegally and those Sale Deeds are not binding on her. In the oral evidence also PW 1 has reiterated the same.
In the written statement the defendant No. 12 to 14 have contended that they purchased 8 ½ half guntas in Sy.No. 28 through the G.P.A holder of defendant No.1 under Sale Deed dated:08.08.1991 and while purchasing the said property they carefully verified all the documents. In the oral evidence also DW 2 has reiterated the same.
54. It is seen from the records that on the basis of G.P.A the alleged G.P.A holder of defendant No.1 i.e., the present defendant No.4 as sold the sites formed in the suit property to the present 62 O.S. No.3745 / 2008 defendant No.5to 14 under different Sale Deeds i.e., Ex.P 14 to P 19 documents.
While giving findings on issue No.3 this court has hold that the said Sale Deed dated: 16.09.1990 executed by defendant No.2 and 3 and others in favour of defendant No. 1 pertaining to the suit property is an invalid document and it has no sanctity in the eye of law. Therefore, the subsequent Sale Deeds i.e., Ex.P 14 to P 19 documents executed by the defendant No.4 on behalf of defendant No.1 pertaining to various sites in the suit property based on Ex.P 13 Sale Deed dated 01.06.1990 are also invalid documents. The contention of the defendant No. 12 to 14 that they are the bonafide purchasers of the property cannot be accepted as the earlier Ex.P 13 Sale Deed itself is an invalid document. Therefore, in view of the above reasons it is stated that the plaintiff has proved the fact that the defendant No. 1on the basis of invalid Sale Deed dated 01.06.1990 has executed an illegal G.P.A in favour of defendant No. 4 and on the basis of the same the registered Sale Deeds which are executed by defendant No.4 in favour defendant No.5 to 14 in respect of the suit 63 O.S. No.3745 / 2008 schedule property are invalid documents and they are not the bonafide purchasers.
Hence, in view of all these reasons I answer the above issues accordingly.
55. ISSUE NO.11 AND 12: While giving findings on issue No.4 this court has already hold that the plaintiff is not at all in possession and enjoyment of the suit schedule property as on the date of suit. Issue No.4 is held in the Negative. In the circumstances the relief of permanent injunction as prayed by the plaintiff in the plaint cannot be granted.
So for as with respect to the relief of declaration as sought by the plaintiff at prayer No.(a) and a(i) is concerned, the learned counsel for the defendant No.1,4and 7 would submits that in this case the Plaintiff is out of possession of the suit schedule property and she has not at all sought for the relief of possession in the prayer column and therefore the mere suit for declaration without seeking the relief of possession is not maintainable. 64 O.S. No.3745 / 2008
56. As rightly submitted by the learned counsel for defendant No.1,4 and 7 ,it is stated that , in the present suit this court has already hold that the plaintiff is not at all in possession and enjoyment of the suit property as on the date of the suit. In this case the plaintiff has not sought for the relief of possession from the defendants.
57. At this juncture, I have referred the decision of our Hon'ble High court, reported in 2006 SCC online KAR 501 - Sri.Aralappa V/s Sri.Jagannath and others.
In the above referred SRI.ARALAPPA VS. SRI.JAGANNATH AND OTHERS's case pertaining to the facts of that case, our Hon'ble High Court has stated in para No. 25 to 30 of the judgment as under:
"25. It is contended that when once it is demonstrated that plaintiffs were not in possession of the suit schedule property as on the date of the suit, when they did not seek for possession of the suit schedule property, in view of the second proviso to Section 34 of the Specific Relief Act, plaintiffs are not entitled to any relief of declaration. In support of this contention the defendant relied on the judgment of the Supreme Court in the case of Ram Saran and Ors. v. Smt. Ganga Devi wherein it has been held that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable.65 O.S. No.3745 / 2008
26. A Division Bench of this Court in the case of Poojair Puttaiah and Ors. v. Kempaiah-has held that in a suit for declaration of owner-ship and permanent injunction, not only the plaintiff must prove his title, but also his possession over the property, on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, the relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership, is relief of possession of the property. The proviso to Section 34 of the Specific Relief Act, 1963, also affirms the said view. Where the plaintiff is out of possession of the land and does not seek relief for possession, a mere suit for declaration is not maintainable.
27. The Supreme Court in the case of Vinay Krishna v. Keshav Chandra-held that the plaintiff is not in exclusive possession of the property and defendants and other tenants were in occupation of the property, the relief of possession ought to have been asked for as a consequential relief to the relief of declaration. The failure to do so undoubtedly bars the discretion of the Court in granting the decree of declaration. Merely because, the plaint says in the prayer column such other relief may he granted to the plaintiff, it does not mean that without a specific plea for possession and disregarding the bar under Section 42 (proviso) of the Specific Relief Act, the suit could be decreed even with reference to the portions of which the plaintiff has been in possession.
28. Section 34 of the Act reads as under:
34. Discretion of court as to declaration of status or right.-
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, as the plaintiff need not in such suit ask for any further relief:
66 O.S. No.3745 / 2008
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
29. In the light of the aforesaid judgment and the statutory provisions referred supra, it is clear that, the object of the section is to perpetuate and strengthen testimony regarding title and protect it from adverse attacks and to prevent future litigation by removing existing cause of controversy.
The policy of the legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully. The proviso to the said Section shows the care that has been taken by the legislature to avoid multiplicity of suits and to prevent a person getting the declaration of right in one suit and immediately after the remedy already available in the other. This is clear from the proviso of the Section. The proviso lays down that no Court shall make such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. The object of this proviso is to avoid multiplicity of the suits. Where the plaintiff is entitled to some consequential relief, directly flowing from the right or title of which lie seeks declaration in the suit, he must seek declaration in the first, instance and a consequential relief in the same suit and not by two separate suits. This provision is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to seek further relief to which he is entitled to, as a natural consequence of the declaration. That is where the judicial discretion counts. It would he a case of proper exercise of judicial discretion, to refuse to grant a declaration sought for, even if the plaintiff establishes his title but he is not in possession, on the date of the suit and do not seek the relief of possession.
30. In a suit for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of 67 O.S. No.3745 / 2008 the property on the date of the suit, relief of permanent injunction is not on appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title to the property. It would lead to anomalous situation and create confusion in the public, which is to be avoided."
58. Even though in the plaint and also in the oral evidence it is contended on behalf of the plaintiff that the plaintiff has been in possession and enjoyment of the suit schedule property since the date of oral partition i.e., from the year 1999 till the filing of the suit, but the plaintiff has failed to prove the fact that she has been in possession and enjoyment of suit schedule property as on the date of the suit. While giving findings on issue No. 4, this court has recorded a finding that the Plaintiff is not at all in possession and enjoyment of the suit property as on the date of suit. Issue No.4 is held in the Negative.
68 O.S. No.3745 / 2008
59. In the prayer column the plaintiff has sought for declaration to declare that the Sale Deed dated 01.06.1990 executed by defendant No.2 and her children in favour of defendant No.1 in respect of the suit schedule property is null and void and not binding on her. Further she sought for the declaration that the subsequent Sale Deeds (as mentioned in prayer a (i)) executed by first defendant through his G.P.A holder 4th defendant in respect of different portion of the suit property is not binding on her.
60. In the plaint and also in the oral evidence the plaintiff has contended that she is in possession and enjoyment of the suit schedule property as on the date of suit. As already stated, the plaintiff has failed to prove her possession and enjoyment of the suit schedule property as on the date of suit. This shows that the plaintiff was not in possession as on the date of suit. In view of the ratio laid down by our Hon'ble High Court in SRI.ARALAPPA VS. SRI.JAGANNATH AND OTHERS's case, 'even then, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable, as no decree for permanent injunction can 69 O.S. No.3745 / 2008 be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession'. But in this case, the plaintiff has not at all got amended the plaint and failed to seek the relief of possession. Therefore, in view of the ratio laid down in the above cited SRI.ARALAPPA VS. SRI.JAGANNATH AND OTHERS's case, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession of the suit schedule property on the date of the suit, when she is able to seek further relief of recovery of possession also, omits to do so, the court shall not make any such declaration and the suit is liable to be dismissed as not maintainable.
Hence, in view of all these reasons, I answer the above issues accordingly.
61. ISUE No.13: In view of my reasons as stated in issue No.1 to 12 and additional issue No.1 and 2 and the conclusion arrived at, I proceed to pass the following:
ORDER 70 O.S. No.3745 / 2008 The suit of the plaintiff is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer Online, corrected and then pronounced by me in open court, this the 30th DAY OF JANUARY 2020).
(H. CHANNEGOWDA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE 71 O.S. No.3745 / 2008 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri.Hanumantharayappa Documents marked on behalf of the plaintiff/s:
Ex.P1 Power of Attorney dated 18.09.2013
Ex.P2 Certified copy of registered partition deed dated
28.07.1939
Ex.P3 Certified copy of registered sale deed dated
06.01.1975
Ex.P4to9 RTC extracts
Ex.P10 Death Certificate
Ex.P11 Death Certificate
Ex.P12 Certified copy of order sheet in O.S
No.6767/1997
Ex.P13 Certified copy of sale deed dated 01.06.1990
Ex.P14&15 Certified copies of sale deeds dated 14.11.2003
Ex.P16 Certified copy of sale deed dated 11.03.2004
Ex.P17 Certified copy of sale deed dated 17.05.2002
Ex.P18 Certified copy of sale deed dated 11.11.2002
Ex.P19 Certified copy of sale deed dated 08.08.1991
Ex.P20&21 Encumbrance certificates
List of witnesses examined on behalf of the Defendant/s:
DW1 Sri.V.C.Reddappa Chetty DW2 Sri.Periyakaruppan
Documents marked on behalf of the Defendant/s:
Ex.D1 Original Unregistered General Power of Attorney dated 12.02.1990 Ex.D2 Certified copy of Assessment list extract Ex.D3 Receipt Ex.D4 Demand register extract Ex.D5 Receipt Ex.D6 Demand Register Extract 72 O.S. No.3745 / 2008 Ex.D7 Receipt Ex.D8 Copy of official memorandum dated 16.02.1991, Ex.D9 Copy of Official memorandum dated 27.08.1991 Ex.D10 Approved layout map Ex.D11 Mutation Register extract Ex.D12 RTC extract Ex.D13 Tippani Copy Ex.D14&15 Encumbrance certificates Ex.D16 Certified copy of order sheet in Appeal No.18/95 of KAT,Bengaluru Ex.D17 Certified copy of order passed in Appeal No.18/95 by the KAT, Bengaluru Ex.D18 Revision Settlement Akarbandh Ex.D19 Original General Power of Attorney Ex.D20 to25 Photos Ex.D26 C.D. List of witnesses examined on behalf of the Court:
CW1 Sri.Man Mohan, Advocate & Notary.
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE.73 O.S. No.3745 / 2008
Judgment pronounced in the open court.
The operative portion of the order reads thus -
ORDER The suit of the plaintiff is dismissed.
No order as to costs.
Draw decree accordingly.
XXXVII ACCJ, (CCH-38) 74 O.S. No.3745 / 2008 O.S.4368/2009 Modification of Order dated 06.12.2019 passed by this court regarding stamp duty and penalty on the unregistered Sale Agreement dated 02.05.1985:
It is seen from the records that on 09.01.2019 the learned counsel for the defendant No. 1 (a) to (e) has filed I.A along with list of documents which includes an unregistered Sale Agreement dated 02.05.1985.
When the learned Counsel for Defendant No. 1(a) to (e) wanted to mark the said unregistered Sale Agreement dated 02.05.1985 through DW-2 , at that time the learned counsel for the Plaintiff has raised objection for marking of the said document on the ground that there is deficiency of stamp duty on the said document.
Having heard the learned
counsel for the parties this court has
ordered that the defendant No.1(a)
to(e)have to pay balance duty of Rs.
1,795/- plus penalty of Rs.17,950/-
in all Rs.19,745/- towards duty and
penalty on the said unregistered Sale
Agreement dated 02.05.1985, as per
order dated 06.12.2019.
There after, on 20.01.2020 the
learned counsel for defendant No. 1(a)
to (e) orally has prayed to modify the
order dated 06.12.2019 with regard
to payment of duty and penalty on
the said Sale Agreement dated
75 O.S. No.3745 / 2008
02.05.1985, in view of the decision of
Hon'ble Supreme court, reported in
ILR 2002 KAR 3017-T.Mohan V/s
Kannammal and another.
I have perused the ratio laid
down in the above cited decision. It is
seen that in the above cited case it is
the case of the plaintiff that an
agreement of sale was entered into
between the plaintiff and defendant
No.1 and that the defendant No.1 on
20th October 1980 executed an
Agreement of Sale of the property in
her favour for a consideration of Rs.
29,500/- out of which Rs.10,000/-
was paid as advance. The plaintiff
has filed the said suit seeking a
declaration and for specific
performance of the Agreement of Sale
as noted earlier. The trial court on
appreciation of the evidence on record
has recorded the finding against the
plaintiff and dismissed the suit.
In the appeal filed by the plaintiff ,
our Hon'ble High Court , assessing
the evidence on record has held that
agreement which was written out on
a five rupee stamp paper was
insufficiently stamped, even so it was
admissible in evidence and could be
relied upon by the plaintiff for the
purpose of the suit.
The defendants have preferred
the appeals before the Hon'ble
Supreme Court against the judgment
and decree passed by our Honb'le
high court in RFA No.129/1993
decreeing the suit for specific
performance of contract of Sale.
In para No.7 of judgment the
76 O.S. No.3745 / 2008
Hon'ble Supreme court has stated as
under;
" 7.We may clarify that the finding of
the High Court that the agreement
was insuffiently stopped is erroneous.
It is patent on a perusal of the
relevant provisions of the Karnataka
Taxation and certain other laws
(Amendment) Act, 1979 (Karnataka
Act No.21 of 1979) by which the
Karnataka Stamp Act, 1957
(Karnataka Act 34 of 1957) was
amended and the schedule was
substituted provided in article thereof
that an agreement or memorandum
of an Agreement in respect of which
no specific provision regarding the
denomination of the stamp to be paid
has been made, the requisite
denomination of the stamp would be
Rs.5/-".
In that cited case, the Hon'ble
supreme court has held that ' The
provision of the Stamp Act applicable
in the present case is the Pre -1995
Amendment Act, when the prescribed
stamp duty was Rs.5/- only.
Therefore, there is no insufficiency in
the stamp duty paid on the
document.'
If we apply the ratio laid down
in the above decision to the facts and
circumstances of the present case, it
is seen that, we can see the similar
facts situation in this case also, as in
the present case the said Agreement
of Sale was of the year 1985
(02.05.1985). Therefore, the provision
of the Stamp Act applicable in the
present case is the Pre -1995
77 O.S. No.3745 / 2008
Amendment Act, when the prescribed
stamp duty was Rs.5/- only.
Therefore, there is no insufficiency in
the stamp duty paid on the document
i.e., an Agreement of Sale dated
02.05.1985.
In the circumstances, in view of
the ratio laid by the Hon'ble Supreme
court in the above cited decision , it is
just and reasonable to modify the
order date 06.12.2019 with regard to
payment of duty and penalty on the
agreement of Sale dated 02.05.1985.
Hence, I proceed to pass the
following:
ORDER
The order dated 06.12.2019 passed
by this court with regard to the duty
and penalty to be payable on the
unregistered Sale Agreement dated
02.05.1985 i.e., directing the
defendant No.1 (a) to (e) to pay in all
the duty and penalty of
Rs. 19,745/- is recalled.
Consequently it is stated that as
the prescribed Stamp duty was Rs.
5/- only on the said unregistered
Agreement of Sale dated 02.05.1985,
the same is held sufficient.
XXXVII ACCJ, (CCH-38)