Bangalore District Court
Sri.P.Ayyanan vs Smt.Susheelamma on 23 April, 2015
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BANGALORE. (CCH-21)
Dated: This, the 23rd day of April 2015.
Present: Smt: S.H.Renukadevi B.Sc; LL.B.
O.S. No.15676/2005
Plaintiff: Sri.P.Ayyanan, aged about 42 yrs,
R/at No.109/1, 4th Main, NGEF
Layout, Sanjayanagar, Bangalore-94.
(By Sri.Ashok.N.Nayak, Advocate)
V/S
Defendants: 1. Smt.Susheelamma,
W/o.Late.A.Lourdappa,
aged about 59 yrs,
Dead by LRs; i.e., D2 to D4,
2. Sri.L.Arogyaswamy,
S/o.Late.A.Lourdappa,
aged about 35 yrs,
3. Sri.L.Albert, S/o.Late.A.Lourdappa,
aged about 27 yrs,
4. Smt.Theresa, D/o.Late.A.Lourdappa,
aged about 37 yrs,
[Defendants 1-4 all are r/at
Thambuchetty Palya, K.R.Puram Post,
Bangalore-36]
2 O.S. No.15676/2005
5. Sri.Ramathilak, S/o.Venkatasubbaiah
Naidu, Major, R/at No.41, II flat, 100
Feet Road, Koramangala, Bangalore-
32. Alternative R/at No.10, French
Colony, ST. Bed, Koramangala,
Bangalore-47.
6. Sri.Sadananda, Major, R/at No.14,
Kalkere Road, Sanehabharathi Layout,
Dooravaninagar, Ramamurthy Nagar,
Bangalore-16.
7. Sri.Raghudharan, Swathi Bhavan, 8th
Cross, 4th Main Road, Kalkere Road,
Ramamurthy Nagar, Bangalore-16.
8. Sri.J.Sagayaraju, S/o.Sri.A.Joseph,
aged about 32 yrs, R/at No.132,
Thambuchettypalya, K.R.Puram,
Bangalore-35.
(Defts.2 to 5-Exparte)
(By Sri.M.A.Sebastian, Advocate for Defts.6 & 7)
(By Sri.Ashoka.R.Reddy, Advocate for Deft.No.8)
Date of institution of the suit 23.02.2005
Nature of the suit (Suit for Pro-note,
Suit for Declaration
Suit for Declaration and Possession,
Suit for Injunction, etc.)
Date of commencement of recording 20.03.2012
of the evidence
Date on which the Judgment was 23.04.2015
pronounced
Total duration Year/s Month/s Day/s
10 02 00
3 O.S. No.15676/2005
JUDGMENT
This suit has been instituted for the relief of
(a) cancellation of the decree of permanent injunction passed in O.S. No.15900/2002, dt. 03.06.2004 by the Addl. City Civil Judge, Court Hall-22, against 5th defendant, in respect of the property comprised in Sy. No.4/2 & 50/2, and the suit schedule site carved out of the same survey No.50/2, pertaining to the plaintiff and further may be pleased to held that the same is not binding on the plaintiff,
(b) direction to defendant Nos.1 to 8 or their agents/henchmen/third party not to interfere with the peaceful possession and enjoyment and not to create any third party rights on the schedule property of the plaintiff and not to change the nature, and also structure of the schedule property,
(c) declaration that the plaintiff is the absolute owner of the suit schedule property, and
(d) cost and such other reliefs.
2. The description of the suit schedule property as shown in the schedule to the plaint, is as follows: -
4 O.S. No.15676/2005
All piece and parcel of the property bearing site No.1, Khatha No.72/1/50/2, carved out of Sy. No.4/2 & 50/2, situated at Sonnathammanahalli, Thambuchetty Palya, K.R.Puram, Bangalore East Taluk, Measuring East to West 45+46 and North to South 52 2 feet measuring in all 2366 sq. feet and bounded on:
EAST BY: - Road;
WEST BY: - Site No.4;
NORTH BY: - Site No.2; and on
SOUTH BY: - Road.
3. Case of the plaintiff in brief, runs as under: -
The plaintiff is the absolute owner in possession of the suit schedule property. The plaintiff's vendor has purchased the suit schedule property under the registered sale deed dated 05.12.1990 from the power of attorney holder of defendant Nos.1 to 4 by name Sri.Ramthilk/5th defendant. The plaintiff has purchased the schedule property under the registered sale deed dated 09.04.2003 for valuable consideration. After the purchase, the plaintiff got the khatha in his name, and paid up-to-date taxes to the concerned authorities. Originally, defendant Nos.1 to 4 have executed 5 O.S. No.15676/2005 irrevocable power of attorney in favour of 5th defendant on 21.02.1990 in respect of the land comprised in Sy. No.4/2 & 50/2 situated at Sonnathammanahalli, K.R.Puram, Bangalore, measuring 1 acre 20 guntas & 33 guntas respectively by receiving consideration amount, and the power has been given to the 5th defendant to sell the same. Pursuant to the said power of attorney, 5th defendant in the year 1990 itself, formed residential layout in the entire two survey numbers and sold the sites to prospective buyers. The plaintiff's vendor has purchased the suit schedule property from the power of attorney holder/5th defendant under the sale deed dated 05.12.1990 on the strength of the irrevocable power of attorney as said earlier. It appears that subsequently on 19/12/1992, defendant Nos.1 to 4 alleged to have cancelled the said power of attorney given to 5th defendant. As on the date of the execution of the sale deed dated 05.12.1990, power of attorney was in existence and was valid, effective and in force. The defendant Nos.1 to 4 have filed O.S. No.15900/2002 for permanent injunction against the 5th defendant pertaining to the property comprised in Sy. No.4/2 & 50/2 situated at Sonnathammanahalli on the file of 6 O.S. No.15676/2005 XIII Addl. City Civil Judge, Mayohall Unit, Bangalore, on 24.06.2002. At that time, the 5th defendant had already sold the entire land by forming sites. 5th Defendant in collusion with defendant Nos.1 to 4, has not filed any written statement and therefore, the court was pleased to pass an exparte judgment and decree in favour of defendant Nos.1 to 4. The defendant Nos.1 to 4 and 5 by suppressing the existence of power of attorney and execution of sale deed dated 05.12.1990, executed another sale deed in favour of defendant Nos.6 & 7 on 23.01.1991 in respect of the suit schedule property, against which the plaintiff has filed O.S. No.999/2004 on the file of the City Civil Judge for bare injunction against defendant No.6 & 7, which is pending. The defendant No.8 has also alleged to have purchased the entire survey No.4/2 & 50/2, from defendant Nos.1 to 5 recently in the year 2003, now all the defendants are interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Earlier also, the plaintiff has filed PCR against the defendants in PCR No.178/2004 for cheating and the plaintiff has also lodged complaint before Lokayukta against defendants. The plaintiff has 7 O.S. No.15676/2005 sought the relief to cancel the decree in O.S. No.15900/2002 as the plaintiff cannot invoke any forum as he is not a party to the said proceedings. One Smt.Bula Shanmugam and Sri.Sadagopal, who have purchased house site No.42 and 43 carved in Survey No.4/2, Sonnathommanahalli, from 5th defendant have filed O.S. No.16088/2004, for the same relief on the file of Addl. City Civil Judge, which is pending consideration. Hence, this suit.
4. In spite of due service of summons, the defendant Nos.1 to 5 have not chosen to appear before this court and hence they have been placed exparte.
5. During pendency of the suit, death of defendant No.1 was reported by the plaintiff that the defendant No.1/Smt.Susheelamma W/o.Late.Lourdappa was passed away on 11.02.2007. Hence, plaintiff was required to take steps to bring her LRs who are defendant Nos.2 to 4 on record. Though steps were taken by the plaintiff, they remained absent.
6. 6th & 7th Defendants have been represented by their advocate and filed common written statement. Material points of their defence are: -8 O.S. No.15676/2005
1) The suit is not maintainable in law or on facts and is liable to be dismissed in limine;
2) 6th & 7th Defendants have denied that the plaintiff is the absolute owner in possession of the suit schedule property and pleaded that the plaintiff is not in possession of the suit schedule property.
There is no site bearing No.1 with the measurements given in the plaint. The actual measurements of the site No.1 is (86' + 85')/2 x 36' and the same was purchased by the 6th defendant by a registered sale deed dated 23.01.1991 from the erstwhile owner Smt.Susheelamma. The alleged power of attorney holder of Smt.Susheelamma by name Sri.V.Ramthilak along with 2 sons and 1 daughter of Smt.Susheelamma had also signed the sale deed in favour of 6th defendant as witness. 7th Defendant is the absolute owner in possession of the house site No.2, ITI Notified area khatha No.72/1/50/2, New C.M.C. Khatha No.819, measuring 85 + 82/2 X 37 Sq.Ft having purchased the same under a registered sale deed dated 23.01.1991 from its original owner and it was witnessed by the said power of attorney holder/Sri.V.Ramthilak and the children of the true owner;
9 O.S. No.15676/2005
3) They have denied that the plaintiff's vendor has purchased the suit schedule property from the defendant No.1 to 4/power of attorney holder Sri.Ramthilak and the plaintiff has purchased the suit schedule property under registered sale deed dated 09.04.2003 and after purchase the plaintiff got the khatha in his name and paid up to date taxes to the concerned Authorities. When these defendants purchased the property in the year 1991, the entire property was in possession of Smt.Susheelamma and she had delivered vacant possession to these defendants, purchasing the suit schedule property by the plaintiff does not arise at all;
4) All the revenue records, khatha of property and encumbrance certificates are all standing in the name of these defendants and they have paid the tax to the CMC, Krishnarajapuram; and
5) They have denied the entire case of the plaintiff, and thereby cause of action. So, they pray for dismissal of the suit.
7. 8th Defendant has been represented by his advocate and filed written statement. Material points of his defence are: -
1) The suit is not maintainable either in law or on facts and the same is liable to be dismissed in limine;10 O.S. No.15676/2005
2) The 8th defendant has denied, plaintiff's ownership and possession over the suit schedule property by virtue of sale deed dated 05.12.1990 came to be executed by the Power of Attorney Holder of defendant Nos.1 to 4; i.e., Sri.Ramthilak/5th defendant;
3) He has pleaded innocence about the original suit bearing O.S.No.15900/2002 and also O.S.999/2004;
4) He has pleaded that the Sy. No.4/2 measuring 1.29 acres and Sy.
No.50/2, measuring 0.33 guntas was originally owned by late Loudra Swamy and after his death, the defendant No.1 and her sons succeeded to this land. On 22.12.2003 the defendant No.1 and her sons have executed the absolute sale deed in favour of the defendant No.8 for sale consideration of Rs.12,75,000/-. Since the date of purchase, he has been in possession and enjoyment of the land;
5) He has pleaded that the lands which are situated at Sonnathammanahalli, K.R.Puram Hobli, Bangalore South Taluk, were purely an agricultural lands and the sale deeds produced by the plaintiff in support of his claim does not disclose any survey No. to show the existence of present disputed property and are not 11 O.S. No.15676/2005 at all existing as recognized and sanctioned by the competent authorities and further there is no sanction plan. Hence, there is no said site; i.e., suit schedule property in existence. Under these circumstances, the sale deed produced by the plaintiff is void and ab-intio in the eye of law. Hence, the suit for bare injunction against 8th defendant is not at all maintainable; and
6) He has pleaded that he purchased the said lands in the nature of agricultural lands and no encumbrance or interest is being created on the properties with the jurisdiction Sub-Registrar's office and immediately he had filed O.S.9377/2004 before the City Civil Court, Bangalore, for an injunction which is pending and further during the pendency of the suit, some of the defendants after came to know that, no valid rights and title was derived in respect of the alleged property/sites purchased by them have come forward to settle their dispute and later the suit came to be dismissed against some of the defendants who have settled the matter amicably and accordingly 8th defendant has filed as Memo for dismissal of the suit against the some of the defendants. On these material grounds, he prays for dismissal of the suit.
12 O.S. No.15676/2005
8. On the basis of above pleadings, this court has framed the following issues: -
1. Whether the plaintiff proves that the Judgment and Decree passed in O.S. No.15900/2002 on the file of CCH-22 is not binding on the plaintiff?
2. Whether the plaintiff proves that he was in lawful possession of the suit schedule property on the date of the suit?
3. Whether the plaintiff proves the alleged interference?
4. Whether the suit is maintainable?
5. What decree or order?
Additional Issue framed on 12.12.2011: -
1. Whether the plaintiff proves his title over the suit schedule property?
9. In order to prove his case, the plaintiff got examined himself as P.W.1 and got exhibited forty-two documents; Viz:
Ex.P.1 Sale Deed dated 05.12.1990 executed by V.Ramthilk in favour of Vijaykumar, Ex.P.2 Sale Deed dated 09.04.2003 executed by J.Vijayakumar in favour of P.Ayyanan, Exs.P.3 to 13 O.S. No.15676/2005 Ex.P.22 Tax Receipts, Ex.P.23 Property Register Extract, Exs.P.24 and P.25 Encumbrance Certificates, Exs.P.26 to P.29 Telephone Bills and Receipts, Exs.P.30 to P.35 Electricity Bills and Receipts, Ex.P.36 Acknowledgement issued by police, Ex.P.37 Tax-Paid- Receipt, Ex.P.38 Certified Copy of the Cancellation of General Power of Attorney, Ex.P.39 Certified Copy of Judgment in O.S. No.15900/2002, Exs.P.40 & P.41 Photographs of the suit schedule property and Ex.P.42 Negatives of the Photographs. During the course of cross-examination of P.W.1 Ex.D.1 Copy of Complaint has been got marked. Per contra, the defendants No.6, 7 & 8 have not adduced any evidence.
10. Heard both side. Perused the written arguments supplied by the learned counsel appearing for plaintiff and also perused the precedents supplied by the learned counsel for defendant No.5; i.e., (1) ILR 2010 KAR 2996, and (2) ILR 2005 KAR 884.
11. My findings on the above said issues are as follows: -
Issue Nos.1 to 3 & Addl. Issue No.1: In the negative, 14 O.S. No.15676/2005 Issue No.4: Partly in the affirmative, & partly in the negative, & Issue No.5: As per final order, for the following: -
REASONS.
12. ADDL. ISSUE No.1, ISSUE No.2 & ISSUE No.3: For the sake of convenience, these three issues are taken up together for answering.
13. Case of the plaintiff in brief, runs as under: -
The plaintiff is the absolute owner in possession of the suit schedule property. The plaintiff's vendor has purchased the suit schedule property under the registered sale deed dated 05.12.1990 from the power of attorney holder of defendant Nos.1 to 4 by name Sri.Ramthilk/5th defendant. The plaintiff has purchased the schedule property under the registered sale deed dated 09.04.2003 for valuable consideration. After the purchase, the plaintiff got the khatha in his name, and paid up-to-date taxes to the concerned authorities. Originally, defendant Nos.1 to 4 have executed irrevocable power of attorney in favour of 5th defendant on 21.02.1990 in respect of the land comprised in Sy. No.4/2 & 50/2 15 O.S. No.15676/2005 situated at Sonnathammanahalli, K.R.Puram, Bangalore, measuring 1 acre 20 guntas & 33 guntas respectively by receiving consideration amount, and the power has been given to the 5th defendant to sell the same. Pursuant to the said power of attorney, 5th defendant in the year 1990 itself, formed residential layout in the entire two survey numbers and sold the sites to prospective buyers. The plaintiff's vendor has purchased the suit schedule property from the power of attorney holder/5th defendant under the sale deed dated 05.12.1990 on the strength of the irrevocable power of attorney as said earlier. It appears that subsequently on 19/12/1992, defendant Nos.1 to 4 alleged to have cancelled the said power of attorney given to 5th defendant. As on the date of the execution of the sale deed dated 05.12.1990, power of attorney was in existence and was valid, effective and in force. The defendant Nos.1 to 4 and 5 by suppressing the existence of power of attorney and execution of sale deed dated 05.12.1990, executed another sale deed in favour of defendant Nos.6 & 7 on 23.01.1991 in respect of the suit schedule property. The defendant No.8 has also alleged to have purchased the entire survey No.4/2 & 50/2, from defendant 16 O.S. No.15676/2005 Nos.1 to 5 recently in the year 2003. Now all the defendants are interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Hence, he seeks for declaration of his title over the suit schedule property and permanent injunction restraining the defendants from interfering with his possession and enjoyment.
14. In order to prove his case, the plaintiff got examined himself as P.W.1 and got exhibited 42 documents. His evidence; i.e., examination-in-chief (affidavit) is consistent with the facts of his case as noted supra. Exhibited documents also corroborate his case. Now, let us consider the case of plaintiff in view of the defence taken by the contesting defendants and the leading case Suraj Lamps and Industries Private Limited vs State of Haryana & Anr by our Apex Court on 11th October, 2011.
15. In the leading case; Suraj Lamps and Industries Private Limited vs State of Haryana & Anr AIR 2012 SC 206:
Our Apex Court has discussed about GPA in detail. After elaborate discussion, it has concluded as under at para Nos.15, 16 & 17: -17 O.S. No.15676/2005
"15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable 18 O.S. No.15676/2005 property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship." (Underlining is mine) 19 O.S. No.15676/2005 The above-noted observation of our Apex Court, is self- explanatory. Any how, it is applicable prospectively. So, it is not applicable to the case on hand.
16. In view of the above said facts of plaintiff, case of the plaintiff clearly reveals that he has purchased the suit schedule property under the registered sale deed dated 09.04.2003/Ex.P.2 for valuable consideration. His vendor had purchased this property under the registered sale deed dated 05.12.1990/Ex.P.1 from the power of attorney holder of defendant Nos.1 to 4 by name Ramthilk/5th defendant. According to the plaintiff, defendant Nos.1 to 4 have executed irrevocable power of attorney in favour of 5th defendant on 21.02.1990 in respect of the land comprised in Sy. No.4/2 & 50/2 situated at Sonnathammanahalli, K.R.Puram, Bangalore, measuring 1 acre 20 guntas & 33 guntas respectively by receiving consideration amount, and the power has been given to the 5th defendant to sell the same. Pursuant to the said power of attorney, 5th defendant in the year 1990 itself, formed residential layout in the entire two survey numbers and sold the sites to prospective buyers. The plaintiff's vendor has purchased the suit 20 O.S. No.15676/2005 schedule property from the power of attorney holder/5th defendant under the sale deed dated 05.12.1990 on the strength of the irrevocable power of attorney as said earlier. So, it is clear that power of attorney said to have been executed by defendant Nos.1 to 4 in favour of 5th defendant dated 21.02.1990 is the agency coupled with interest. So, it comes under Section 202 of the Indian Contract Act-1872. Section 202 of the Indian Contract Act reads;
"Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."
Unfortunately, to know the recitals of that power of attorney, it has not been produced by the plaintiff before this court, alternatively he has produced only his vendor's sale deed dated 05.12.1990/Ex.P.1. In the absence of power of attorney said to have been executed by the defendant Nos.1 to 4 in favour of 5th defendant Sri.V.Ramthilk who had executed the sale deed in favour of plaintiff's vendor J.Vijay Kumar, it cannot be said that the sale deed dated 05.12.1990 executed by 5th defendant Sri.V.Ramthilk as the power 21 O.S. No.15676/2005 of attorney holder of defendant Nos.1 to 4, in favour of J.Vijay Kumar is valid and complete document. If that were be so, the plaintiff who has purchased the property/suit schedule property from the said J.Vijay Kumar, has not been derived valid title to the suit schedule property.
17. Here, it is pertinent to note; the plaintiff has produced the document Ex.P.38 Copy of Cancellation of General Power of Attorney, said to have been executed in favour of 5th defendant/Sri.Ramthilk on 21.02.1990. If General Power of Attorney said to have been executed in favour of 5th defendant, is irrevocable one and it is coupled with interest, it would not be cancelled by the defendants 1 to 4 as per Ex.P.38, is my opinion. On this score also, it can be perceived that the General Power of Attorney said to have been executed by the defendants 1 to 4 in favour of the defendant No.5 on 21.02.1990 appears to be not the agency coupled with interest and it does not fall under Section 202 of Contract Act-1872. Under this situation, without observing the vendor's title; i.e., sale deed dated 05.05.1990 along with alleged power of attorney dated 21.02.1990, the plaintiff has purchased the 22 O.S. No.15676/2005 suit schedule property and thereby, it appears that he has been cheated. Any how, on the basis of Ex.P.2 Sale Deed dated 09.04.2003 executed by J.Vijay Kumar, it cannot be said that the plaintiff was derived title to the suit schedule property, since J.Vijay Kumar himself had no valid title and thereby possession over the suit schedule property.
18. The very identity, measurement and schedule given to the suit schedule property described by the plaintiff, are disputed by the contesting defendants. Even though, the plaintiff has failed to prove the same by supplying necessary layout-plan and relevant documents. Besides, he has not attempted to appoint the Commissioner to collect the evidence at the spot.
19. The plaintiff has produced some documents including revenue documents in order to establish his possession over the suit schedule property. When he fails to establish his title over the suit schedule property, other documents can be ignored, since the very identity of the suit schedule property is in dispute.
20. No doubt, the defendants have denied the plaintiff's case, and they disputed the very identity of suit schedule property. 23 O.S. No.15676/2005 As stated earlier, the plaintiff has utterly failed to establish his title and lawful possession over the suit schedule property. So, he is not entitled for the declaration and injunction. In the precedent ILR 2005 KAR 884 Nagendra Babu vs. Manohar Rao Pawar, supplied by the learned advocate for defendant No.5, our Hon'ble High Court has also observed and confirmed the same principle as under:-
"Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted."
Hence, the question of considering the interference by the defendants to his possession, does not arise at all. Accordingly, I answer these three issues in the negative.
21. ISSUE No.1: It is also the case of the plaintiff; "on the date of the execution of the sale deed dated 05.12.1990, power of attorney was in existence. The defendant Nos.1 to 4 have filed O.S. No.15900/2002 for permanent injunction against the 5th defendant pertaining to the property comprised in Sy. No.4/2 & 50/2 situated at Sonnathammanahalli on the file of XIII Addl. City 24 O.S. No.15676/2005 Civil Judge, Mayohall Unit, Bangalore, on 24.06.2002. At that time, the 5th defendant had already sold the entire land by forming sites. 5th Defendant in collusion with defendant Nos.1 to 4, has not filed any written statement and therefore, the court was pleased to pass an exparte judgment and decree in favour of defendant Nos.1 to 4." So, the plaintiff seeks for cancellation of the decree of permanent injunction passed in O.S. No.15900/2002, dt. 03.06.2004 by the Addl. City Civil Judge, Court Hall-22, against 5th defendant, in respect of the property comprised in Sy. No.4/2 & 50/2, and the suit schedule site carved out of the same survey No.50/2, pertaining to the plaintiff and further may be pleased to held that the same is not binding on the plaintiff.
22. Admittedly, the plaintiff herein was not a party to the suit in O.S. No.15900/2002. According to the plaintiff, judgment and decree has been obtained by the defendant Nos.1 to 5 herein by fraud. Against this back-drop, it is not the course open to the plaintiff to challenge the same. Alternatively, the plaintiff ought to have challenged the exparte judgment and decree passed in O.S. No.15900/2002, by way of appeal, since it is well-established 25 O.S. No.15676/2005 principle of law that the appeal is continuation of suit and aggrieved party other than party to the suit, may prefer appeal. With this observation, it is held that the suit for the relief of cancellation of decree passed in O.S. No.15900/2002, cannot be allowed by this court. Accordingly, I answer issue No.1 in the negative.
23. ISSUE No.4: This issue is regarding maintainability of the suit. In view of my observation in the preceding paras and finding recorded on issue Nos.1 to 3 and addl. issue No.1, the suit for declaration and injunction, is maintainable. But, the suit for cancellation of decree in O.S. No.15900/2002 dated 03.06.2004 by the Addl. City Civil Judge Court, Bengaluru, is not maintainable. Accordingly, I answer this issue partly in the affirmative and partly in the negative.
24. ISSUE No.5: In view of my findings recorded on issue Nos.1 to 4, and addl. issue No.1, I proceed to pass the following: - 26 O.S. No.15676/2005
ORDER The suit is hereby dismissed. Considering the facts and circumstances of the case, there is no order as to cost.
Office is required to draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 23rd day of April, 2015).
(S.H.RENUKADEVI), IV Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
ANNEXURES 27 O.S. No.15676/2005 List of witness examined for the plaintiff:
P.W.1 - Sri.P.Ayyanan.
List of documents exhibited for the plaintiff:
Ex.P.1 - Sale Deed dated 05.12.1990 executed by V.Ramthilk in favour of Vijaykumar Ex.P.2 - Sale Deed dated 09.04.2003 executed by J.Vijayakumar in favour of P.Ayyanan Ex.P.3 to 22 - Tax Receipts Ex.P.23 - Property Register Extract Ex.P.24 & 25 - Encumbrance Certificates Ex.P.26 to 29 - Telephone Bills and Receipts Ex.P.30 to 35 - Electricity Bills and Receipts Ex.P.36 - Acknowledgement issued by police Ex.P.37 - Tax-Paid-Receipt Ex.P.38 - Certified Copy of the Cancellation of General Power of Attorney Ex.P.39 - Certified Copy of Judgment in O.S. No.15900/2002 Ex.P.40 & 41 - Photographs of the suit schedule property Ex.P.42 - Negatives of the Photographs List of witness examined for the defendants:
-NIL-
List of document exhibited for the defendants:
Ex.D.1 - Copy of Complaint
(S.H.RENUKADEVI),
IV Addl. City Civil & Sessions Judge,
Mayo Hall Unit, Bengaluru.
28 O.S. No.15676/2005
Judgment pronounced in the Open
Court(vide separate order).
ORDER
The suit is hereby dismissed.
Considering the facts and
circumstances of the case, there is no
order as to cost.
Office is required to draw the
decree accordingly.
(S.H.RENUKADEVI),
IV Addl. City Civil & Sessions Judge,
Mayo Hall Unit, Bengaluru.
29 O.S. No.15676/2005