Bangalore District Court
Sri. B.V. Dayanand vs Sri. B.N. Janardhana Reddy on 15 April, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 15th day of April 2016.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.1400/1996
C.C.H.8
Plaintiff: 1. Sri. B.V. Dayanand,
S/o Sri. B.P.Venkataswamy,
Aged about 18 years,
Residing at No.465/3,16th Cross,
19th Main, 4th 'T' Block,
Jayanagar,
Bengaluru-560 041.
2. Sri. N. Vijay Kumar,
S/o Sri. B.R. Neelappa Reddy,
Aged about 35 years,
Residing at No.314/2, 7th cross,
Domlur Lay-out,
Bengaluru-560 071.
(By Sri. K.N.Dayalu, Advocate)
: Vs :
Defendant: Sri. B.N. Janardhana Reddy,
Aged about 39 years,
S/o Palyada Narayanappa,
Residing at No.78/3, near Vakil
Gardenia Apartment , Bellandur
Bangalore South Taluk,
Bengaluru-560 103.
(By Sri. Ganesh N.M.,Advocate)
2 O.S. No.1400/1996
Date of the institution of 24/2/1996
suit:
Nature of the suit: Specific performance
Date of the commencement 3/04/2007
of recording of the evidence:
Date on which the judgment 15.04.2016
was pronounced :
Total Duration Year/s Month/s Day/s
20 01 21
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is a suit filed by the plaintiffs against defendant seeking the relief of specific performance of contract in respect of alleged agreement of sale dated: 7/1/1994 said to have been executed by the defendant in respect of suit schedule property as described in the plaint schedule and plaintiffs have prayed for grant of specific performance relief directing the defendant to execute sale deed in favour of plaintiffs or their nominees and in case of failure of defendant 3 O.S. No.1400/1996 to do so, to execute the sale deed through process of court and for permanent injunction restraining the defendant or his agents, servants or anybody not to alienate the suit schedule property to any 3rd parties other than the plaintiffs and directing the defendant not to dispossess the plaintiffs from the peaceful possession of the suit schedule property and for other reliefs for which plaintiffs are entitled to including the cost of the suit.
2. The case of the plaintiff has stated in the plaint averments briefly stated as follows:-
The subject mater of the suit is described in the plaint schedule by the plaintiffs and the said property which is the subject mater of sale agreement dated: 7/1/1994 is stated as follows:
All that piece and parcel of non-agricultural land being portion of Sy.No.22/1C Kaikondarahalli village, Varthur Hobli, Bangalore South Taluk measuring on east 56 feet, West 52 feet, North 84 feet and South 85 feet and being bounded on the :
East by: Private road laid in Sy.No.22/1-C West by: Private property North by: Private property South by: 40 feet wide private road passing through Sy.No.22/1-C 4 O.S. No.1400/1996 It is the case of the plaintiffs that defendant being the owner of suit schedule property wherein land Sy.No.22/1C of Kaikondarahalli, Varthur Hobli, Bangalore South Taluk now in Bengaluru East taluk measuring 1 acre is converted land into non-agricultural tenure wherein the defendant being the owner of this piece of 1 acre land in respect of Sy.No.22/1-c. He entered into an agreement of sale with plaintiffs on 7/1/1994 agreeing to sell the suit property for a total consideration amount of Rs. 5,25,000/- free from all encumbrances . Under the said agreement of sale, defendant had received earnest money(part sale consideration amount of Rs.2,90,000/-) and balance sale consideration amount of Rs.2,35,000/- was paid in installments of Rs.65,0000/-, 30,000/- by pay order Nos.016156 and 0616160 respectively both dated:8/2/1994 drawn on Union Bank of India, Domlur Branch, Bengaluru drawn in favour of defendant and Rs.1,40,000/- in cash on 9/2/1994. Thus, the plaintiffs have paid entire sale consideration amount of Rs.5,25,000/- as agreed under agreement of sale dated: 7/1/1994 with respect to one acre of land. The defendant herein has duly acknowledged the receipt of above said amount of Rs.5,25,000/- from the plaintiffs under agreement of sale dated: 7/1/1994 and it is alleged by the plaintiffs that further defendant assured them to execute registered sale deed after clearance of all encumbrances and after obtaining necessary 5 O.S. No.1400/1996 clearance and to hand over documents . The plaintiffs further stated that in accordance with agreement of sale, defendant got registered 5 sale deeds in favour of plaintiff's nominees out of total extent of the land out of 1 acre of land and total measurement of property sold under 5 sale deeds is measuring 22,688 sq, ft. and by mistake it is wrongly typed as 4 sale deeds in para-7 of the plaint and defendant has executed 5 sale deeds and after providing tar road, defendant was under obligation to register sale deed in favour of plaintiff's nominees to remaining extent of area measuring 4,560 sq, ft., ie., suit schedule property and this extent of land is fully described in the schedule of the plaint as suit schedule property. The plaintiffs approached the defendant with a request to execute sale deed for an area measuring 4560 sq, ft., out of Sy.No.22/1-C pursuant to sale agreement dated: 7/1/1994 wherein defendant expressed his willingness to execute sale deed and asked whether plaintiff got necessary conveyance ready and thereafter plaintiffs have brought non-judicial stamp papers and got prepared sale deed in the name of their nominee Sri. Shankar Reddy on 22/8/1995 and when they informed the defendant about this fact, defendant kept on giving one excuse or the other and sought postponement of the registered sale deed and in the meanwhile, there was ban with regard to registration of Revenue/converted lands and this helped the defendant to 6 O.S. No.1400/1996 further delay of registration of sale deed in respect of suit schedule property. However, when the registration started, plaintiffs approached the defendant again and requested him to execute sale deed and plaintiffs have also kept ready draft sale deed, but, defendant went on postponing the execution of sale deed by giving one or the other reason and thereafter plaintiffs suspected the attitude of defendant and defendant is on the verge of changed behavior of defendant and plaintiffs made enquiries and learnt that defendant is making attempts to sell the suit schedule property to any 3rd party for higher consideration amount keeping in dark , the subsisting agreement of sale entered with them. The defendant also attempted to build a shed on the schedule property on 18/2/1996. Fortunately, plaintiffs and their friend and relatives resisted the illegal attempts of the defendant, wherein defendant who is in the neighbourhood of schedule property has vowed to come back again and plaintiffs who live far away from the suit schedule property have none except the newly appointed watchman to watch the property. The plaintiffs also pleaded that they are always ready and willing to get the sale deed registered through defendant and plaintiffs have no arrears of any sale consideration amount payable to the defendant . But, the defendant inspite of completing the sale transaction, wherein he made illegal attempts to sell the suit schedule property in favour of 3rd 7 O.S. No.1400/1996 party and also dispossess from the suit schedule property with fraudulent intention of making wrongful gain. Under the circumstances, defendant has no manner of right, title or interest whatsoever to sell the suit schedule property to any third party except the plaintiffs or in favour of their nominees. Hence, plaintiffs constrained to file this suit for specific performance of contract and in the alternative, except to seek remedy through process of law. Hence, plaintiffs have contended that they have filed this suit for specific performance of contract based upon the agreement of sale dated: 7/1/1994.
3. The defendant appeared in this suit in response to the suit summons issued by this court and filed his written statement, contending that suit filed by the plaintiff is wholly misconceived and is not maintainable either in law or on facts and the alleged sale agreement dated: 7/1/1994 which has been relied by the plaintiff is neither valid agreement nor enforceable in law. Consequently, plaintiffs cannot claim any right before this court under or in pursuance of the said agreement dated: 7/1/1994. Either way, the said agreement is neither registered nor appropriate stamp duty is paid on the said document. Under these circumstances, the claim of plaintiffs that they are in possession of suit schedule property based on the suit agreement is wholly untenable apart from being factually false statement. The defendant reiterates his 8 O.S. No.1400/1996 possession and enjoyment over the suit schedule property. The defendant further contended that his children have already filed a suit in O.S.No.8064/2003 against this defendant challenging the alienations made by this defendant in respect of portion of land in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, to the various purchasers and there is already order passed by this court in that suit restraining the defendants therein including defendant from alienating the suit schedule property and defendant contended that, even assuming without considering that there exists agreement of sale which was enforceable contract, plaintiffs ought to have filed a suit for specific performance of contract on the payment of market value of the suit schedule property and plaintiffs have admittedly paid a partly sum of Rs.17,125/- as court fee and without any proper basis or valuation in respect of suit schedule property have paid proper court fee whereas, the value of suit schedule property as on the date of suit was more than Rs.20,00,000/- and suit there fore, is wholly undervalued by the plaintiffs nor plaintiffs have not paid proper court fee without making proper valuation of the suit. The plaintiffs have virtually defaulted in complying with their duties and obligation casted upon them under the agreement of sale in as much as defendant has neither formed any layout sites or roads or drains nor put up any 9 O.S. No.1400/1996 construction or any compound wall over the suit schedule property. The plaintiffs have been guilty of committing gross breach of terms of agreement of sale and their obligation under the contract. Hence, plaintiffs cannot seek enforcement of alleged agreement of sale against defendant that too after lapse of 10 years from the date of execution of agreement of sale. Hence, the suit is totally barred by time and defendant contended that the submission made by the plaintiffs that defendant herein was the full and absolute owner of residential converted land comprised in Sy.No.22/1C of Kaikondarahalli village measuring 1 acre is incorrect. In fact, the said property is ancestral property of defendant which fell to his share under a family partition. The defendant admitted the entering into an agreement, but, denied that balance amount of Rs.2,35,000/- was paid under cheques and by way of cash. The defendant denied the averments made in para-5 of the plaint and also denied the possession of plaintiffs over the suit schedule property under part performance of contract. The allegation made in para-6 of the plaint are baseless and defendant has sought for claim application in respect of clearance certificate that was referred in the pleadings and obviously plaintiffs are relying upon vague clauses and obviously there is no valid and proper consensus ad idem by and between the parties and hence, the defendant contended that, alleged agreement of 10 O.S. No.1400/1996 sale entered into is void and wholly unenforceable contract. The defendant contended that the registered four sale deeds are irrelevant and after providing basic amenities, the defendant was under obligation to register the sale deeds in favour of plaintiffs' nominee to a further extent of 4560 sq, ft., of land. Hence, defendant denied his liability to execute any sale deed. The defendant further contended that the suit schedule property belongs to him and his family members and it part of the area agreed to be sold. Hence, plaintiffs were also well aware of this fact and hence, defendant denied the averments of the plaint regarding readiness and willingness of the plaintiff and also plaintiffs bought required non-judicial paper and got prepared the draft sale deed in favour of their nominee Shankar Reddy on 22/8/1995, and hence, defendant called upon the plaintiffs to prove all these allegations by strict proof and defendants specifically contended that, claim of plaintiffs is hopelessly barred and hence, defendant denied the allegations of plaint regarding readiness and willingness in compliance to section 16© of Specific Relief Act and defendant also denied the averments made in para-8 of the plaint. The defendant further contended that he never attempted to alienate the suit schedule property to any 3rd party as it has never been in possession and hence, the averments that defendant attempted to built a shed on the schedule property on 11 O.S. No.1400/1996 8/2/1996 is also false. The defendant has denied the averments made by the plaintiffs in their pleadings and also contended that there is no cause of action for this suit and hence, question of plaintiff being ready and willing to obtain sale deed registered does not arise and such an averments made in the plaint is baseless, futile and meaningless. The document No.2 produced by the plaintiff which is the sale deed dated: 23/8/1995 purported to have been prepared by the plaintiffs make it appear as if a sum of Rs.2,50,000/- which was payable by the intending purchaser Sri. Shankar Reddy, who is said to be the nominee of the plaintiffs and to the defendant herein in presence of the witnesses on that day ie., on 23/8/1995 and defendant denied the claim of plaintiffs that there was no any due amount by the plaintiffs towards balance sale consideration amount and defendant contended that assuming without conceding that the contents of sale deed is correct, either way the claim of the plaintiffs is hollow and vague and apart from being baseless. Under these circumstances, plaintiffs are not entitled to the equitable and discretionary relief of specific performance and more over by filing such false suit, this defendant is subjected to undue agony and hardship and thus suit is liable to be dismissed with exemplary costs.
4. Based upon these pleadings, the following issues are framed for trial of the suit :-
12 O.S. No.1400/19961. Whether the plaintiffs proves that they have paid the balance sale consideration of Rs.2,35,000/- to the defendant ?
2. Whether the plaintiffs prove that they have been put in possession of the suit schedule property in part performance of the contract?
3. Whether the plaintiffs prove that they have been always ready and willing to perform their part of the contract?
4. Whether the defendant proves that the agreement of sale is neither valid nor enforceable under Law?
5. Whether the suit is properly valued and the court fee paid is just and proper?
6. Whether the plaintiffs are entitled to the relief of specific performance?
7. Whether the plaintiffs are entitled the relief of permanent injunction?
8. What order or decree?
5. In order to prove the above issues, the plaintiff No.1 is examined as PW.1 and got marked Ex.p.1 to P.32 and with this evidence, plaintiffs closed their side. Thereafter defendant himself is examined as DW.1 and has given rebuttal evidence and in the evidence of D.W.1 document Ex.D.1 to 33 are came 13 O.S. No.1400/1996 to be marked and with this evidence, defendant's side evidence is closed. Thereafter, the suit is posted for arguments.
6. After hearing arguments of both sides, wherein counsel for plaintiff filed I.A.No.20 under Sec. 151 of C.P.C seeking leave of this court to pay deficit court fee of Rs. 17,750/- and plaintiff's counsel has furnished demand draft bearing No.880430 dated: 24/3/2016 drawn on Canara Bank in favour of Registrar, City Civil Court, Bengaluru with memo dated:28/3/2016 and prayed for grant of leave to pay deficit court fee by accepting the memo. For which counsel for defendant filed objections to this memo by annexing zerox copy of order passed in O.S.No.126/2009 on I.A.No.2 dated:
28/7/2015, wherein counsel for plaintiffs filed written arguments on main in this case on 28/3/2016 and counsel for the plaintiffs also relied upon various decisions submitted along with memo of citations in this suit and after hearing arguments of both sides and also perused the written arguments filed in this suit and also perused the citations relied by the counsel for defendant and after appreciation of oral and documentary evidence placed on record and after perusal of written arguments, decisions furnished by both parties and on appreciation of material placed on record, I answer the above Issues as follows:
Issue No.1 In affirmative
14 O.S. No.1400/1996
Issue No.2: In affirmative;
Issue No.3: In affirmative;
Issue No.4: In negative;
Issue No.5: Partly in affirmative and partly
in negative;
Issue No.6: Plaintiff is entitled for the relief
of specific performance of
contract in respect of Ex.P.1
dated 7.1.1994 in respect of
property measuring 4560
square feet open site
in Sy.No.22/1C of
Kaikondarahalli village
Issue No.7: The plaintiff is entitled for the
relief of permanent injunction
as consequential relief prayed
in the suit against defendant;
Issue No.8: The suit of the plaintiff
deserves to be decreed with
costs against defendant for the
following reasons:-
REASONS
7. Issue No.1 to 4: Since these issues are interlinked to each other and evidence adduced on record by the parties comprising of these main three issues. Hence, in order to avoid repetition of facts and evidence, Issue No.1 to 4 are taken up together for discussion.15 O.S. No.1400/1996
It is the case of the plaintiff that the defendant herein as absolute owner of land bearing Sy.No. 22/1c of Kaikondarahalli village Varthur Hobli, Bengaluru South Taluk measuring 1 acre ( described in the sale agreement Ex.P.1) as schedule property of the sale agreement, wherein he agreed to sell the schedule land measuring 1 acre in favour of plaintiffs for a total sale consideration amount of Rs.5,25,000/- and executed sale agreement dated 7.1.1994 and plaintiffs have paid a sum of Rs.2,90,000/- under Ex.P.1 and agreed to pay balance sale consideration amount of Rs.2,35,000/- to defendant and accordingly, they have paid balance sale consideration amount of Rs.2,35,000/- and defendant has executed endorsement on Ex.P.1 and further the defendant put the plaintiffs in possession of land Sy.No.22/1-C under part performance of contract as plaintiffs were put in possession of the suit land and after formation of sites and road, the defendant has executed 5 registered sale deeds in respect of sale of 5 sites to plaintiffs' nominees/purchasers through defendant, wherein 1st plaintiff is witness to all the sale deeds of his nominees and after execution of 5 sale deed by defendant in respect of sale of 5 sites formed in Sy.No.22/1-C , the remaining site is only site measuring 4,560 sq.ft. described as schedule property in the plaint schedule, which is being portion of Sy.No.22/1-C i.e., schedule land measuring 1 acre in extent and defendant did 16 O.S. No.1400/1996 not came forward to execute sale deed to the plaintiffs nominee one Shankar Reddy or in favour of plaintiffs in pursuance of Ex.P.1, whereas defendant attempted to put up shed on 18.2.1996 in the remaining site in Sy.No.22/1-C and also tried to alienate the schedule property and it is at that point of time, the plaintiffs have filed this suit against defendant and have prayed for decree of specific performance of contract based upon Ex.P.1 dated 7.1.1994. The defendant appeared and filed written statement, wherein defendant has raised objections regarding insufficiency of stamp duty in respect of Ex.P.1 dated 7.1.1994 contending that the sale agreement Ex.P.1 is neither registered nor proper stamp duty has been paid and plaintiffs are claiming possession under Ex.P.1 under part performance of contract and as such, the defendant has taken the plea of Ex.P.1 is grossly insufficiently stamped and proper duty and penalty has to be paid and as such, the said document is not valid and not enforceable under law and defendant also contended that Sy.No.22/1-C is not allotted to his share in the partition held in the family and whereas Sy.No.22/1-B is allotted to his share in the family partition held and defendant also contended that his children (son and daughter) after they attained majority and within 3 years of attaining majority have filed the suit against the defendant herein and other alienees/purchasers of 5 sites in Sy.No.22/1-C in O.S. 17 O.S. No.1400/1996 No.8064/2003 for partition and separate possession, wherein children of defendant have challenged the alienation made by defendant in respect of portion of land in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli against 5 purchasers and defendant also raised the contention regarding non payment of proper court fee and valuation of the property by the plaintiff is inadequate and no proper and sufficient court fee is paid, wherein suit property valued more than Rs.20,00,000/- as per market value and plaintiff has paid court fee by under valuation and defendant has taken specific contention that the schedule property is ancestral property and defendant though admitted execution of sale agreement and defendant in order to avoid execution of sale deed in respect of remaining portion of Sy.No.22/1-C for an extent of 4560 square feet. He has taken various defenses contending that he is not the owner of Sy.No.22/1-C and as such, defendant denied to execute sale deed in favour of plaintiffs or in favour of their nominees and further contended that he has not parted with possession of schedule property in part performance of contract. Hence, defendant contended that Ex.P.1 agreement of sale relied by the plaintiff is not enforceable contract and he prays for dismissal of the suit.
8. First plaintiff is deposed before this court on oath for himself and on behalf of plaintiff No.2, wherein 1st plaintiff 18 O.S. No.1400/1996 has deposed his evidence by filing affidavit evidence filed under Order 18 Rule 4 of CPC and on perusal of the affidavit evidence of 1st plaintiff, wherein it reveals that the defendant herein had entered into contract with plaintiff on 7.1.1994 agreed to sell the schedule property measuring 1 acre of converted land in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, for total sale consideration amount of Rs.5,25,000/- and executed sale agreement, wherein defendant had initially received Rs.2,90,000/- and thereafter, he has received Rs.2,35,000/- paid by the plaintiff in installments of Rs.65,000/- and Rs.30,000/- and by pay order Nos.016156 and 0616160 dated 8.2.1994 respectively drawn on Union Bank of India, Domlur Branch, Bengaluru drawn in favour of defendant and Rs.1,40,000/- paid in cash on 9.2.1994. Thus P.W.1 stated that they have paid entire agreed sale consideration amount to defendant of Rs.5,25,000/- as per the terms of Ex.P.1 dated 7.1.1994 and defendant has duly acknowledged the receipt of Rs.5,25,000/- amount from the plaintiff and P.W.1 stated regarding execution of sale agreement dated 7.1.1994 by the defendant herein and P.W.1 in para No.6 of his deposition stated that defendant has executed 5 sale deeds in favour of plaintiffs nominees and the total extent of land out of 1 acre of land registered in favour of plaintiffs nominees is measuring 22,688 square feet and measurement of the 19 O.S. No.1400/1996 property sold under the said 5 sale deeds would comprising of 22,688 square feet after proving for roads and defendant was under obligation to register sale deeds in favour of plaintiff or to their nominees to further extent of 4,560 square feet of land area i.e., schedule property involved in the suit and P.W.1 stated that the schedule property measuring 4,560 square feet in Sy.No.22/1-C is described in the plaint schedule property and P.W.1 stated that they approached the defendant with a request to execute sale deed. The defendant expressed his willingness and asked the plaintiffs to get the necessary conveyance document ready and accordingly, plaintiffs brought to non judicial stamp papers and also got prepared the draft sale deed in favour of their nominee one Shankar Reddy on 22.8.1995 and they informed the defendant about preparation and kept ready in respect of draft sale deed in the name of nominee one Shankara Reddy and called from the defendant to execute sale deed in favour of the Shankara Reddy on 22.8.1995, but defendant did not visit the office of Sub Registrar on that day and avoided to execute sale deed and thereafter, defendant attempted to build a shed on the schedule property on 18.2.1996 and though plaintiffs were resisted the act of the defendant, but the defendant, who is neighbourhood of schedule property did not conceded the request of the plaintiff, who are residing far away from the schedule property and plaintiffs have kept 20 O.S. No.1400/1996 watchman to protect their possession and hence, P.W.1 in his evidence deposed that plaintiffs are always ready and willing to perform their part of contract and they are not in arrears of balance sale consideration amount and defendant instead of execution of sale deed for remaining extent of land measuring 4560 square feet, wherein defendant is making illegal attempts to sell the portion of land in Sy.No.22/1-C and as such, P.W.1 pleaded and also in his deposition reiterated the plea of readiness and willingness and hence, P.W.1 stated that the defendant is none other than his father's elder brother's son (cousin) and hence, P.W.1 relying upon his evidence coupled with documents Ex.P.1 to P.32 and got marked through evidence of P.W.1 and as such, P.W.1 pray for decreeing the suit filed for specific performance of contract in respect of suit schedule property as described in the plaint schedule and P.W.1 has relied upon documentary evidence marked in this case as per Ex.P.1 to P.32. The documents marked through P.W.1 are as follows:-
Ex.P.1 is the agreement of sale dated 7.1.1994, Ex.P.1(a) is the signature of defendant and Ex.P.1(b) is the receipt for having received amount, Ex.P.2 to P.6 are the Certified copies of sale deeds executed by defendant in favour of person named by plaintiffs on different dates in Sy.No.22/1C , Ex.P.7 to P.20 are the photographs pertaining to Sy.No.22/1-C, Ex.P.7(a) to 20(a) are its negatives, Ex.P.21 21 O.S. No.1400/1996 is the Photo showing the road leading from Sy.No.16/2 to Sy.No. 22/1C, Ex.P.21(a) is the negative, Ex.P.22 is the layout plan in respect of Sy.No.22/1-C, Ex.P.23 is the certified copy of plaint in O.S. No. 8064/2003 filed by children of defendant dated 3.11.2003, Ex.P.24 is the Vakalathnama of defendant filed on 14/11/2003, Ex.P.25 is the certified copy of final notice issued to defendant and his brother Sri.B.N.Vasudeva Reddy by Spl. Deputy Commissioner, Bengaluru, Ex.P.26 is the Certified copy of receipt for having deposited an amount of Rs.35/-towards phodi charges dated: 12/10/1993, Ex.P.27 is the Certified copy of receipt dated: 17/10/1993 for having paid betterment charges of Rs.43,560/-, Ex.P.28 is Certified copy of report submitted by Tahsildar to Spl.DC, Bengaluru division, Ex.P.29 is the Certified copy of notice dated 12.4.1993 issued by Spl. Deputy Commissioner regarding conversion of land Sy.No.22/1-C, Ex.P.30 is the certified copy of conversion order in respect of land Sy.No.22/1-C dated 26.10.1993
9. The counsel appearing for the defendant cross examined to P.W.1, wherein he admits that the defendant is the son of his senior father and he is junior in age compared to defendant by one or two years. P.W.1 denied that the defendant is incapable of reading English language . P.W.1 stated that he has studied up to PUC Standard education 22 O.S. No.1400/1996 and whereas defendant has studied up to SSLC Standard and P.W.1 stated that there was partition amongst his father and his brothers in respect of family properties under partition deed dated 3.12.1947, but P.W.1 denied his knowledge regarding the partition and P.W.1 stated that he do not know, who is the scribe of Ex.P.1 (b) (receipt produced by the plaintiff) and P.W.1 admits that an amount of Rs.2,95,000/- as stated in Ex.P.1 is received by the defendant and he admits that cheque No.022277 is not encashed and P.W.1 stated that the defendant has presented the said cheque for encashment before the bank and P.W.1 further deposed that on 8.2.1994 defendant came to his house and requested for payment of certain amount, for that he directed the defendant to come on the next day and on 9.2.1994 he did not pay any amount to defendant through pay orders, but P.W.1 denied the suggestion that the defendant did not encashed any pay orders and P.W.1 stated that on 9.2.1994 he paid an amount of Rs.1,40,000/- by way of cash to the defendant. But P.W.1 denied that he is falsely deposing regarding payment of this amount to this defendant on 9.2.1994 and P.W.1 stated that he has not paid any amount to Sri.Rasaranjan or in favour of Narayanappa as mentioned in Ex.P.1. P.W.1 stated that the defendant herein had torn out the agreement of sale executed between himself and one Rasaranjan in his presence on the spot and 23 O.S. No.1400/1996 P.W.1 denied that on the date of sale agreement, he did not paid an amount of Rs.2,90,000/- to the defendant and P.W.1 stated that father of defendant was alive and he has produced documents to show that Sy.No.22/1-C has been converted into non agricultural tenure and P.W.1 stated that he has obtained documents like RTC, Mutation extract and conversion order from the defendant including tax paid receipt from the defendant's custody and P.W.1 further examined and produced in all 14 photographs along with negatives, which are marked as per Ex.P.7 to P.21 and again he has also produced the layout plan in respect of Sy.No.22/1-C, which is marked at Ex.P.22.
10. The counsel for defendant further cross examined to P.W.1 on 28.6.2011 , wherein P.W.1 admits that the 2nd plaintiff has not executed any GPA in order to give evidence on his behalf and to prosecute the suit and P.W.1 admits that he has not obtained any legal opinion prior to entering into contract of sale of schedule property and P.W.1 stated that they have verified the documents like RTC, M.R.Extract and encumbrance certificate standing in the name of defendant and P.W.1 denied that defendant was not the owner of suit schedule property i.e., Sy.No.22/1-C , but P.W.1 denied his knowledge regarding partition held between defendant and his brother. But P.W.1 stated that schedule 24 O.S. No.1400/1996 property was being allotted to the share of defendant herein and he witnessed the schedule property since beginning as it was previously an agricultural land and after execution of sale agreement, they have converted the said land into non agricultural tenure and P.W.1 voluntarily stated that the conversion order was passed in the name of defendant in the year 1993 in the month of October/November and P.W.1 stated that prior to execution of sale agreement the land in question was already converted land by orders of conversion and P.W.1 stated regarding endorsement written in Ex.P.1, it is written by the friends of defendant, but P.W.1 denied the suggestion that the payment as shown in endorsement in Ex.P.2 are not made to the defendant and P.W.1 also denied that in Ex.P.1 to P.6, no site measurement nor boundaries of the respective sites have been shown and P.W.1 admits that they have not issued any prior suit notice to defendant and P.W.1 stated that the consideration amount shown in Ex.P.2 to P.6 is passed on to defendant.
11. The defendant's counsel again cross examined to P.W.1 on 27.1.2015, wherein P.W.1 deposed the boundaries of the schedule property to the east B.P.Ramaiah Reddy, to the west, B.P.Papanna Reddy, to the north, the property of brother of defendant No.1, to the south, there is a private layout of Shivram property and P.W.1 stated that he has 25 O.S. No.1400/1996 deposed the boundaries of schedule property, which is recited in Ex.P.1 and he denied that as per the palupatti southern side property belongs to Subbamma and he also further denied that on page No.3 of Ex.P.1 regarding mentioning of cheque number and date i.e., inserted afterwards and as per old revenue records Sy.No.22/1B belongs to one Ramakrishna Reddy and he do not know at present in whose name Sy.No.22/1B is standing in the revenue records and P.W.1 stated that Sy.No.22/1-C belongs to Janardhana Reddy and his brother Vasudeva Reddy and P.W.1 further admits that there are five sale deeds executed already leaving one site by measuring 4560 square feet area in Sy.No.22/1-c. Prior to 22-8-1995 he called upon the defendant to execute sale deed on number of times, but defendant did not show any inclination and P.W.1 also stated that the progress for approached him and informed about the attitude of the defendant of alienation of sites to any 3rd party for higher sale consideration amount, but P.W.1 cannot named the names of any person, who had informed him about the defendant's act of alienation of schedule property and P.W.1 stated that defendant attempted to construct the shed in the schedule property on 18.2.1996, but he admits that he has not produced any photographs to show that the defendant attempted to construct any shed over the schedule property on 18.2.1996. However, witness 26 O.S. No.1400/1996 volunteers that on 18.2.1996 he protested the act of defendant in putting up construction of shed and at that time, he had kept a watchmen in the schedule property and now the said watchman was left the place and went some where else and hence he cannot examine the said watchmen in the suit and hence, P.W.1 denied the suggestion that defendant has not interfered in his possession and also not denied the title and possession and defendant not attempted to construct any building or shed on 18.2.1996.
12. P.W.1 was further cross examined on 19.2.2015, wherein he admits that he has not produced any bank statement in respect of his bank account in the suit and P.W.1 stated that on 23.8.1995, he approached the defendant and requested him to appear before the Sub Registrar Office for the purpose of execution of the sale deed in favour of his nominee one Shankar Reddy and he did not enquired Shankar Reddy on 23.8.1995 regarding purchase of stamp papers for registration of the sale deeds and P.W.1 admits that the nominee one Shankar Reddy is not his friend. But P.W.1 stated that on 23.8.1995 they have not filed any police complaint against defendant and plaintiff/P.W.1 claims to be in possession of the suit schedule sit at that time, the defendant came and obstructed over his possession, whereas the defendant did not 27 O.S. No.1400/1996 approached the Sub Registrar office on 23.8.1995 in execution of sale deed. Hence, the defendant has committed breach of his part in not keeping presence himself before the Sub Registrar office on 23.8.1995 and P.W.1 stated that again in the month of January 1996, he called upon the defendant to execute sale deed and though P.W.1 promised to execute sale deed, but defendant has not come forward to execute sale deed and whereas the attitude of defendant shows that he postponing his part of contract in execution of sale deed in favour of plaintiff and as such, P.W.1 in his evidence stated that the defendant is attempting to sell the schedule property in favour of intending purchasers in order to get higher price and he is evading to execute sale deed and P.W.1 stated that on 18.2.1996 he went over the schedule property along with his workers and protested the act of construction of defendant over the schedule property and he had kept watchman Reddy in the year 1996 and there was ban for registration of revenue sites in the year 1996 and after lapse of some period, again registration process of sites was commenced before the Sub Registrar office.
13. P.W.1 was recalled as per orders passed on I.A.No.15 and 16 and further examined on 25.11.2015, wherein P.W.1 got marked documentary evidence from Ex.P.25 to P.30 on 25.11.2015 and subsequently again 28 O.S. No.1400/1996 P.W.1 was further cross examined on 6.1.2016 and got marked documents Ex.P.31 and 32, these documents reveals that certified copy of affidavit filed by the defendant herein and his brother before Deputy Commissioner office on 12.4.1993 , it is marked at Ex.P.31 and certified copy of mutation extract in NO.7/87-88 is marked at Ex.P.32 and since defendant counsel did not cross examined to P.W.1 in respect of his examination-in-chief recorded on 6.1.2016. Hence, there is no cross-examination by counsel for defendant on documents Ex.P.31 and P.32. Hence, P.W.1 relying upon his evidence coupled with documents Ex.P.1 to P.32 has prayed that he is ready and willing to obtain sale deed in respect of portion of schedule property from the defendant and P.W.1 also stated that an amount of Rs.5,25,000/-( Agreed sale consideration amount) is already paid to defendant and there is nothing remained to perform any act on the part of plaintiff and rather it is performance to be complied by the defendant in execution of sale deed in respect of remaining portion of site measuring 4560 square feet of area in Sy.No.22/1-C as defendant has already received entire sale consideration amount of Rs.5,25,000/- . Hence, there is no cross-examination on behalf of defendant in respect of further documents Ex.P.31 and P.32 produced by the plaintiff.
29 O.S. No.1400/199614. The defendant himself has given rebuttal evidence by his examination as D.W.1 in the suit, wherein D.W.1 deposed through his affidavit evidence filed under Order 18 Rule 4 of CPC and it reveals from his evidence that he do not know reading and writing English language except signing his signature and this affidavit evidence filed in this case is prepared on his instruction to his counsel and he has caused his signature to this affidavit evidence by knowing the contents in Telugu language from the counsel appointed by him and D.W.1 stated that the suit schedule property does not belongs to him and he is not the owner of agricultural land and he is the owner of land bearing Sy.No.22/1-B measuring an extent of 1 acre situated at Kaikondarahalli village, Varthur Hobli, Bengaluru South Taluk, Bengaluru South Taluk and the said piece of land is allotted to his share in the partition held amongst his late father Narayanappa and other brothers through an unregistered partition deed dated 15.9.1982 and D.W.1 also relied upon Ex.D.1 and stated that BDA has issued endorsement that property cannot be converted and he further stated that property cannot be converted and he further stated that he has not applied for conversion of land bearing Sy.No.22/1-B at any point of time, but D.W.1 admits that the suit schedule property is converted land and there is an order passed by the Deputy Commissioner for conversion of this land and 30 O.S. No.1400/1996 D.W.1 also stated that his son filed O.S. No. 8064/2003 before City Civil Court for partition and separate possession in respect of Sy.No.22/1-B, wherein Hon'ble High Court has allowed the amended petition filed by his son in the above suit in order to maintain the schedule property by deleting Sy.No.22/1-C and to insert Sy.No.22/1-B and D.W.1 stated that the old revenue records pertaining property in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, Bengaluru stands in his name and D.W.1 relied upon Ex.D.5 and Ex.D.6 and also relying upon some RTC documents stated that his name is appearing in respect of land bearing Sy.No. 22/1-B of Kaikondarahalli village, Varthur Hobli, Bengaluru South Taluk and present RTC in respect of schedule property are not standing in his name. Hence, D.W.1 by this affidavit evidence stated that he has not entered into an agreement of sale with plaintiff and as such, he denied execution of sale agreement dated 7.1.1994 pertaining to the suit schedule property, which is not belongs to him. Hence, D.W.1 got marked documents through his further examination-in-chief recorded on 7.1.2015, wherein D.W.1 affirmed his affidavit evidence as examination-in-chief and got marked Ex.D.1 to Ex.D.8 in his evidence on 7.4.2015 and documents marked through D.W.1 from Ex.D.1 to Ex.D.33 are as follows:
31 O.S. No.1400/1996Ex.D.1 is Certified copy of unregistered partition deed dated: 15/9/1982, Ex.D.2 is Certified copy of endorsement issued by Bangalore Development Authority dated:26/4/1993, Ex.D.3 is the Certified copy of conversion order dated: 7/2/2003, Ex.D.4 is the certified copy of writ petition order in W.P.No.38063/2013, Ex.D.5 to 7 are the certified copies of three RTC extracts for the year 1992-1993 to 2001-2002 in respect of Sy.No.22, Ex.D.8 to Ex.D.33 are the RTC extracts Hence D.W.1 relying upon his chief examination evidence and coupled with document Ex.D.1 to Ex.D.33 relied and marked in his evidence has prayed for dismissal of the suit filed by the plaintiff.
15. The counsel for the plaintiff cross examined to D.W.1 on 28.4.2015 , wherein D.W.1 admits that his father was having 6 sons and 4 daughters and there was partition held in respect of their family properties between his father and other brothers on 15.2.1982 under unregistered partition deed and D.W.1 admits that the said unregistered partition deed is not given effect in the revenue records and D.W.1 admits that he was allotted land Sy.No.22/1-B measuring 2 acres within the boundaries to the east, Ramaiha reddy land, To the west, Papannas land, to the 32 O.S. No.1400/1996 North, there is a land of one Appaiah, to the South, there is a land of Gundappa. And D.W.1 admits that himself and his brother Vasudev Reddy together have allotted 2 acres of land in the said properties and his share of one acre is allotted towards north to the land of Vasudeva Reddy, to the South of his land there is land belonging to one Gundappa and D.W.1 admits that he has got two children, one son and one daughter and their age respectively 28 and 25 years and after division of properties in joint family, he is residing along with his father, wherein the age of children of D.W.1 in the year 1994, wherein son and daughter, both were minors and D.W.1 admits that in the year 1994 un the year 1994 himself, his wife and his children were residing along with his father in the house bearing No.36 situated at Bellanduru, Bangalore and D.W.1 stated that he do not remember how many years he stayed along with his father in the above address and D.W.1 admits that at present, he is residing with his wife in D.No.78/3 of Bellanduru, Bangalore and his children are residing along with their grand father since about 6 years ago and D.W.1 admits that that he is residing in Door No.78/3 of Bellanduru, Bengaluru and according to witness he was changing his occupation and residing in different residential houses from time to time and he do not know the avocation of his son and D.W.1 admits that his daughter has completed her education and she is residing 33 O.S. No.1400/1996 with her grand father and D.W.1 admits that his father is no more and he died in the year 2012 and D.W.1 admits that his son and his another brother are staying his in father's house, but he cannot give the address of his father's residence, where his son is residing and D.W.1 admits that his sons is not yet married. His son and daughter together have filed O.S.No.8064/2003 against him and others seeking for partition relief in respect of joint family properties and he has appeared in that suit recently and D.W.1 admits that he has not produced any documents in respect of O.S. No. 8064/2003.
16. D.W.1 further cross examined on 22.6.2015 by plaintiff's counsel, wherein he admits that there was partition effected between his brothers and his late father under unregistered document dated 15.9.1982 and D.W.1 stated that he do not know the suit filed by his son and daughter in O.S. No. 8064/2003 , wherein he identified the plaint copy and admitted the said document as plaint filed by his children in O.S. No. 8064/2003 and it is marked at Ex.P.23 and D.W.1 admits that they have filed the suit against him for partition in the share allotted to him in the family partition and D.W.1 admits that at present, himself and his wife are residing in his mother's house bearing D.No.78/3 at Bellandur village and D.W.1 stated that the D.No.78/3 is in 34 O.S. No.1400/1996 respect of agricultural land and this number refers to land survey number. Now it is used for residential purpose and he never residing in D.No.286 at Bellandur post, Bengaluru-37. However, he admits that property bearing No.286 of Bellandur measuring 20/30 is belongs to him and D.W.1 denied that his knowledge that his wife representing minor children as next friend/minor guardian of minor plaintiffs and filed the suit in O.S. No. 8064/2003 and D.W.1 admits that himself and his wife since the date of their marriage are staying together and there was no difference of opinion between the spouse and D.W.1 denied his knowledge regarding suit filed by his children specifically in respect of property allotted to his share in the family partition and D.W.1 admits that suit Item (a) shown in Ex.P.23 is the property in dispute between plaintiff and himself and D.W.1 admits that as per unregistered partition dated 15.9.1982 he did not filed any application or varadi before the revenue authority for change of khatha entries as per partition deed and according to witness his father had given properties to the respective sharers, but respective sharers have enjoyed the properties as per the said allotment and he do not know about the existence of Ex.D.1 unregistered partition deed and for the first time, when he came to know bout Ex.D.1, wherein his father had retained custody of document Ex.D.1 and he do not know the specific date, month and year when 35 O.S. No.1400/1996 his father had given this unregistered partition deed marked at Ex.D.1 to his custody and D.W.1 stated that his father was having custody of Ex.D.1 till his death and his father had died in the year 2012 or 2013 and he do not remember specific date of death of his father Narayanappa and he do not know how many copies of unregistered partition deed were prepared on the alleged date of partition and D.W.1 admits that he has personally read the contents of Ex.D.1 and he do not know whether he was present on the date of preparation of Ex.D.1 and he do not know, who are persons present at the time of execution and drafting of Ex.D.1 and he do not know the name of scribe, who has drafted Ex.D.1 and likewise he do not know whether the elderly persons have attested Ex.D.1 and he do not know whether any family partition deed in their family was subjected to registration. As per Ex.D.1 no mutations were certified in the revenue records and he denied that Ex.D.1 is false and created by him for the purpose of suit and he do not know old Sy.No.22 of Kaikondarahalli village was effected with sub divisions into three divisions namely Sy.No.22/1-A and 22/1-B and Sy.No.22/1-C . However he admits that he has allotted 1 acre of land in Sy.No.22/1-B and his father had allotted each one acre of land to him and his brother Vasudeva Reddy in Sy.No.22/1-B and his portion of 1 acre of land is not converted into non agricultural tenure, wherein 36 O.S. No.1400/1996 Ex.P.7 to P.11 are confronted to D.W.1, wherein he identified these documents and admits these photographs and answered that the road as seen in the photographs and the photographs are pertaining to entire Sy.No.22 and adjoining Sy.No.16 including portion of suit schedule property.
17. D.W.1 further cross examined by counsel for plaintiff on 6.7.2015, wherein he admits that there was phodi effected in Sy.No.22 by division in three portions as 22/1A, 22/1B and 22/1C and he do not remember whether Sy.No.22/1 is sub divided in any other sub numbers and D.W.1 admits that he has been allotted 1 acre of land by his father in Sy.No. 22/1 and there is no remaining land in that survey number and he do not know whether suit schedule property involved in the suit in Sy.No.22/1-B or Sy.No.22/1- C and he do not know whether he has executed any sale agreement in favour of plaintiff in respect of Sy.No.22/1-B or in respect of Sy.No.22/1-C. D.W.1 confronted with his written statement filed by him in this case, wherein he identified his signature and he admits that No Objection Certificate vaklath filed on 19.2.2015 is not signed by him and he do not remember whether his previous counsel name, who has filed vakalath in the suit on 14.11.2003 and identified his signature on the said vakalathnama, which is 37 O.S. No.1400/1996 marked at Ex.P.24 and his signature is Ex.P.24(a) and he do not remember , who has instructed his previous counsel to file written statement in this case. However, D.W.1 admits that he knew about the contention taken by him in the written statement filed in the suit. D.W.1 is asked with question regarding execution of Ex.P.1 dated 7.1.1994 in favour of plaintiffs, wherein D.W.1 answered that he do not know in respect of Ex.P.1 dated 7.1.1994 and he voluntarily stated that he is wondering to the courts in the suit proceedings for the last 20 years. Hence, he do not know about Ex.P.1. D.W.1 stated that he do not know the name of his present counsel, who is defending him in this case and D.W.1 admits that he knew 1st plaintiff and he is related to him, whereas 2nd plaintiff is the co-brother of plaintiff No.1 and he also admits that 1st plaintiff is son of his uncle in relation and he do not know whether plaintiff No.1 and 2 together have filed the suit. However, D.W.1 admits that 1st plaintiff only had filed the suit against him and he denied his knowledge regarding plaintiffs filed this suit seeking the relief of specific performance in respect of land Sy.No.22/1-C and D.W.1 confronted with Ex.P.1 suit agreement of sale and asked to identify his signature, wherein D.W.1 on perusal of Ex.P.1 answered that he do not remember whether he has executed Ex.P.1 in favour of plaintiff and also the signatures appearing on Ex.P.1 are belonging to him and D.W.1 denied 38 O.S. No.1400/1996 the receipt of part sale consideration amount of Rs.2,90,000/- stating that he do not remember whether he has received a sum of Rs.2,90,000/- under Ex.P.1 and witness confronted with Ex.P.1(b), wherein he denied to identify his signature on this receipt and D.W.1 stated that he do not know as per endorsement as per Ex.P.1(c) he has received remaining amount of Rs.2,35,000/- from the plaintiffs and he do not know whether he has agreed to sell the schedule property as shown in Ex.P.1 for consideration amount of Rs.5,25,000/- and he do not know whether he has received entire sale consideration amount of Rs.5,25,000/- under Ex.P.1 and D.W.1 stated that he is not having any bad voices and also he is not having habit of gambling and as such, D.W.1 denied the execution of sale agreement Ex.P.1 and receipt of amount from the plaintiff as per Ex.P.1 and also as per Ex.P.1(b) endorsement and D.W.1 also denied the execution of sale deed in favour of Smt.N.Shantha and others and he denied execution of sale deed in favour of Smt.N.Shantha on 9.11.1994 in respect of site No.1 carved out in Sy.No.22/1-C and he do not know the boundaries in respect of site No.1 sold in favour of Smt.N.Shantha under sale deed dated 9.11.1994.
18. Plaintiff further cross examined to D.W.1, wherein he denied the execution of sale deeds in favour of 39 O.S. No.1400/1996 plaintiff's nominees namely Smt.N.Shantha, V.Subbalakshmi, Maya Thomas, Dr.S.Rama Rao and K.Rajashekar in respect of sites formed in Sy.No.22/1-C and D.W.1 voluntarily stated that these five purchasers have forcibly took him to Sub Registrar office and got executed sale deeds from him and he denied the suggestion that Ex.P.1 is executed by him. However, D.W.1 stated that on the pretext of marketable title over the land Sy.No.22/1-C, he has executed Ex.P.1 in favour of plaintiffs and D.W.1 voluntarily stated that plaintiff No.1 and 2 took him forcibly and got obtained document Ex.P.1 executed by him and he do not know whether Ex.P.1 a sale agreement or any other agreement and he do not know whether himself and his brother B.N.Vasudeva Reddy together have applied for conversion of land Sy.No.22/1-C and had obtained conversion order from Deputy Commissioner, Bengaluru and he do not know whether in Ex.P.1, there is reference made in respect of conversion order granted by the Spl. Deputy Commissioner, Bengaluru and he do not know whether his children have challenged the alienation of 5 others made by him in Sy.No.22/1-C in the partition suit in O.S.No.8064/2003 and he denied that all the 5 sites sold in favour of one Smt. N.Shantha and other 4 purchasers are formed in Sy.No.22/1-C, which was allotted to his share in the family partition and he do not know whether the plaintiffs of O.S.No.8064/2003 had filed the suit 40 O.S. No.1400/1996 initially in respect of Sy.No.22/1-C and further he do not know subsequently plaintiffs have filed amendment application and got amended the schedule of property in the plaint by deleting Sy.No.22/1-C substituted Sy.No.22/1-B and he do not know whether plaintiffs in O.S.No.8064/2003 have retained the boundaries of amendment survey number to that of previous Sy.No.22/1-C and D.W.1 admits that purchasers namely Smt. N.Shantha and 4 other purchasers have obtained sale deed got executed from in Sy.No.22/1-C and he denied that he himself and his brother Sri.B.N.Vasudeva Reddy being the owners of 1 acre of land each in Sy.No.22/1-C formed the residential sites and in that survey numbers, sites have sold in favour of respective purchasers and he do not know whether his brother Sri.B.N.Vasudeva Reddy had not filed any case in respect of Sy.No. 22/1-C allotted to his share and D.W.1 denied his knowledge regarding M.R.No.7/1987-1988, which is certified in the revenue records pertaining to Sy.No.22/1-C and D.W.1 denied that he got changed his name in RTC extracts as per M.R.No.7/87-88 and D.W.1 denied that the schedule property shown in Ex.P.1 refers to Sy.No.22/1-C, wherein though this land of 1 acre is allotted to his share. But he falsely asserting his title and possession in respect of Sy.No.22/1-B allotted to his share in the family partition and D.W.1 stated that he did not submitted any sworn affidavit 41 O.S. No.1400/1996 before Deputy Commissioner office in conversion proceedings and D.W.1 stated that he do not know whether Sri. N.Ramakrishna Reddy had asserted any rights in respect of Sy.No.22/1-C and he has produced documents in the form of RTC extract to show that the schedule property shown in Ex.P.1 i.e., Sy.No.22/1-C has been allotted to the share of Sri. N.Ramakrishna Reddy and he do not know whether schedule site No.5 is existed within the boundaries as shown in Ex.P.1 and he denied that Ex.P.1, this property is not belonging to his brother Sri. N.Ramakrishna Reddy and he do not know the 5 sale deeds executed by him in favour of Smt.N.Shantha and other 4 purchasers are executed after execution of Ex.P.1 and he denied the execution of sale deeds in favour of 5 purchasers (Nominees of plaintiffs) in respect of sites formed in Sy.No.22/1-C and D.W.1 denied that after execution of sale deeds in favour of these 5 persons, he has received entire sale consideration amount of Rs.5,25,000/- as shown in Ex.P.1 and D.W.1 denied that in order to avoid his liability to execute sale deed in favour of plaintiffs as per Ex.P.1. He is deposing false evidence that he has received entire sale consideration amount and D.W.1 admits that he has produced Ex.D.4 in the suit and he denied that himself and his children and his wife are all residing together, wherein D.W.1 denied the suggestion that he instigated his son and daughter to file 42 O.S. No.1400/1996 partition suit in O.S. No. 8064/2003 in order to avoid execution of sale deed in favour of plaintiffs and D.W.1 denied that after sale of 5 sites in favour of 5 purchasers, the only site remaining in Sy.No.22/1-C is the schedule site No.5 as per approved layout map, which is mentioned with the description of the plaint schedule.
19. D.W.1 further cross examined on 7.8.2015, wherein D.W.1 admits that purchasers of 5 sites carved out in Sy.No.22/1-C namely Smt.N.Shantha and 4 others have took him to Sub Registrar office on the pretext of signing the documents as attesting witnesses have obtained sale deed executed from him in respect of 5 sites carved out in Sy.No.22/1-C and he do not remember whether all the 5 sale deeds are registered on the same day are on different dates and he admits that recently about 6 months ago, he has filed his written statement in O.S. No. 8064/2003 after noting the contents of pleadings filed in that suit and he do not know whether plaintiffs in O.S. No. 8064/2003 have sought for the relief of cancellation of sale deeds executed by him in favour of Smt.N.Shantha and 4 other purchasers and witness confronted with certified copies of 5 sale deeds out of which, 3 sale deeds have been registered on 29.6.1994 and remaining two sale deeds were registered on 2.7.1994, 9.11.1994 respectively and D.W.1 denied to identify his 43 O.S. No.1400/1996 signature on these sale deeds and D.W.1 admits that he understood the contents of Ex.P.1 and Ex.P.1(b) endorsement, but he do not remember whether he has given instructions/information to his counsel in respect of Ex.P.1 and Ex.P.1(b) at the time of filing written statement and D.W.1 stated that he did not verified the suit documents Ex.P.1 and P.1(b) relied by the plaintiffs prior to he deposed in this case. However, D.W.1 admits that his counsel had informed him about Ex.P.1 and P.1(b) and read over the contents to him before filing of written statement in this case and D.W.1 stated that he has instructed his counsel at the time of filing written statement in this case that plaintiffs themselves have got executed Ex.P.1 and P.1(b) and he has not signed these two documents that he denied 5 sale deeds executed by him are in respect of the schedule property as shown in Ex.P.1 and he denied that after sale of 5 sites in Sy.No.22/1-C there remains property i.e., open site as mentioned by the plaintiff in Sy.No.22/1-C and D.W.1 further denied that the schedule property shown by the plaintiff as site No.5 is part/portion of property one shown in Ex.P.1 schedule and D.W.1 stated that he do not remember whether 5 sale deeds got executed by him in favour of plaintiffs nominees/purchasers, wherein he do not remember whether 1st plaintiff had signed one sale deed as attesting witness and he do not remember plaintiff No.2 signed other 4 44 O.S. No.1400/1996 sale deeds as attesting witnesses and D.W.1 denied regarding execution of 5 sale deeds in favour of plaintiffs nominees by receiving market value then prevailing for the properties conveyed under these sale deeds and he admits that towards east of his share of 1 acre of land , there existed property of Sri. N.Ramakrishna Reddy and witness stated that property of Sri. N.Ramakrishna Reddy bearing Sy.No.22/1-c and he do not know whether Sri. N.Ramakrishna Reddy did asserted his title in respect of the properties sold in favour of 5 persons, who are plaintiffs nominees and D.W.1 admits that Sy.No.22/1 was not effected into sub division/phodi at any point of time and he do not know whether revenue authorities have assigned Sy.No.22/1 by showing division into A, B and C without effecting any sub division or phodi in compact Sy.No.22/1 and D.W.1 denied the suggestion that he has executed Ex.P.1 in respect of Sy.No.22/1-C, but at this stage, in collusion with revenue authorities converted the said land of 1 acre allegedly fallen to his share and as per revenue records shown in Sy.No.22/1-B in order to cheat the plaintiff and D.W.1 denied that he has mentioned the property conveyed under 5 sale deeds showing the description of land in respect of alienation of sites carved out in Sy.No.22/1-C and D.W.1 stated that he do not know the contents of the affidavit filed by him dated 4.3.2015 are true and correct and he do not know whether any reference is 45 O.S. No.1400/1996 made in his written statement filed in this suit in respect of documents relied by him marked at Ex.D.1 to Ex.D.33 and D.W.1 denied that though he has executed Ex.P.1 and P.1(b) in favour of plaintiffs knowingly this fact and by suppression of facts, he is denying the execution of the sale deeds registered documents in order to avoid execution of the sale deeds in respect of remaining portion of site in Sy.No.22/1-B and D.W.1 stated that he do not know after effecting division between him and his brother Sri.B.N.Vasudeva Reddy, whether there was any creation of phodi in respect of Sy.No.22/1 dividing into equal division of 1 acre each. D.W.1 admits that his relation with adjoining owner Sri. N.Ramakrishna Reddy is not in cordial terms and D.W.1 stated that he is not willing to examine his brother Sri.B.N.Vasudeva Reddy in this suit as witness for him as his relations with his brother is not cordial in nature and witness volunteers that his brother Sri.B.N.Vasudeva Reddy is not in talking terms with him and schedule property pleaded in the plaint is not belongs to him.
20. D.W.1 further cross examined on 6.10.2015 by plaintiffs counsel, wherein he do not know whether Ex.D.1 to Ex.D.33, these documents are obtained from suit records of O.S. No. 8064/2003 and D.W.1 denied that portion of land allotted to his share measuring 1 acre is developed land and 46 O.S. No.1400/1996 it does not have any status of agricultural land and he do not know whether in Ex.D.1, there is rectification of date as 15.9.1982 and he do not know whether Ex.D.1 is acted upon in revenue records and mutations have been certified on the basis of Ex.D.1 and he do not know the documents relied by him as per Ex.D.1 to Ex.D.19 marked in the suit are created by him and D.W.1 answered in respect of 1 acre of land allotted to his share is fully developed land and as such, the said land ceases its nature of agricultural land , for that property, no RTC will lie. But D.W.1 stated that he do not know about this aspect and still his share of 1 acre of land is agricultural land and D.W.1 admits that he can produce documents like RTC extract and other revenue records to show that partition of 1982 has been acted upon and D.W.1 denied the suggestion that Ex.D.1 unregistered partition deed is created by him in order to cheat the plaintiffs and cause loss to him. D.W.1 confronted with the certified copy of notice dated 7.10.1993 addressed by Deputy Commissioner, Bengaluru to him and his brother, wherein witness after reading this notice denied receipt of such notice issued to him. However, D.W.1 admits that in the notice, his name and that of his brother is shown in notice dated 7.10.1993 and he denied regarding payment of amount on 12.10.1993 in respect of Sy.No.22/1-C by paying amount under challan and he do not know the letter written 47 O.S. No.1400/1996 by Tahasildar, Bengaluru South Taluk to Deputy Commissioner in respect of Sy.No.22/1-C dated 10.3.1993 and D.W.1 confronted with certified copy of notice dated 12.4.1993 in respect of payment of conversion charges, wherein he denied the alleged payment and denied to identify this document and it is asked to D.W.1 regarding conversion order passed by Spl. Deputy Commissioner dated 26.10.1993 in respect of 2 acres of land in the name of himself and his brother, but D.W.1 answered that he do not know, who has made the said conversion order and witness denied to admit this document confronted to him and D.W.1 confronted with agreement executed by himself and his brother submitted before Deputy Commissioner, Bengaluru in conversion proceedings, but witness D.W.1 denied to identify this agreement/sworn affidavit jointly by D.W.1 and his brother Sri.B.N.Vasudeva Reddy and D.W.1 denied that after allotment of share of 1 acre of land in Sy.No.22/1-C, he got certified revenue entries as per M.R.No.7/87-88 . However D.W.1 admits that his 1 acre of land is vested with jurisdiction of Doddakannalli Village Panchayath limits in Bengaluru South Taluk and he admits that Ex.P.22 regarding vested of jurisdiction of schedule property in Doddakannalli Village Panchayath limits and he do not know in the agreement of sale is approved by the Grama Panchayath , Doddakannalli Village and D.W.1 stated that he 48 O.S. No.1400/1996 has not verified the documents produced and marked for the plaintiff as per Ex.P.1 to P.22 and he do not remember whether he had verified the documents of plaintiff produced in Ex.P.1 to P.22 and D.W.1 admits that he has not instructed his counsel about description of the schedule property shown in Ex.P.1 and in the plaint schedule and it is denied by D.W.1 that in Ex.P.22 there is formation of six residential sites in his share of 1 acre of land and he has also denied that schedule property is demarcated as site No.5 in Ex.P.22 and D.W.1 also denied that as per the sketch map Ex.P.22, residential sites have been formed in 1 acre of land fallen to his share and D.W.1 stated that he do not remember whether he has challenged the validity of Ex.P.22 before any Appellate Authority or Forum for its cancellation and he do not remember whether he has produced Ex.D.4 certified copy of writ petition order and D.W.1 denied the suggestion that in 1 acre of land in all six sites have been formed out of total sites, 5 has been sold and one site is remaining in the said land and he do not know as per the recitals of Ex.P.1, there is no provision for execution of sale deed in favour of nominees of the plaintiffs and D.W.1 stated that he do not know whether the sale consideration amount shown in Ex.P.1 will tally for a sum of Rs. 5,25,000/- as entered in Ex.P.1. It is posed by way of question to D.W.1 that the schedule site has denoted in Ex.P.22 is shown in the plaint schedule in 49 O.S. No.1400/1996 respect of very same property, but D.W.1 denied the existence of Ex.P.22 and he answered that the schedule site comes in Sy.No.22/1-C and not the share of land allotted to him and again question was posed to D.W.1 that schedule site property comes within the limits of allotted land to him of 1 acre. But D.W.1 stated that the schedule site is not in existence in the share of his land measuring 1 acre and D.W.1 denied that after taking return of cheque mentioned in Ex.P.1, he has been paid an amount of Rs.2,35,000/- and he has executed endorsement as per Ex.P.1(b) on Ex.P.1.
21. D.W.1 was cross examined on 14.10.2015 , wherein he do not know the boundaries in respect of property belongs to one Sri. N.Ramakrishna Reddy and he do not know the boundaries shown in the sale deed of Sri. N.Ramakrishna Reddy , which are different and boundaries as shown in Ex.P.1 are quiet different and D.W.1 denied that land measuring 2 acres allotted to his share and his brother Sri.B.N.Vasudeva Reddy in Sy.No.22/1-C as already developed and electricity supply was also connected in the developed land and D.W.1 denied the suggestion that he has handed over the possession of 1 acre of land to plaintiffs under Ex.P.1 and D.W.1 denied that Ex.D.1 relied by him is false and created document and D.W.1 denied the suggestion that the suit schedule property is measuring 4560 square feet and D.W.1 also denied that one Shankara Reddy, plaintiffs 50 O.S. No.1400/1996 nominee had approached him with a request to execute sale deed, for which, he has refused to execute the same and D.W.1 denied that he has not executed any 5 sale deeds and as such, he is not bound to execute any sale deed in favour of plaintiffs and D.W.1 denied that he attempted to construct shed in the schedule property on 18.2.1996 and also tried to alienate the schedule property on 18.2.1996 and D.W.1 denied that though he has received entire sale consideration amount and he is not ready to execute sale deed in favour of plaintiff based upon Ex.P.1 in respect of suit schedule property.
22. On appreciation of the evidence placed on record that of plaintiffs and defendant, wherein the crucial point to be decided by this court whether defendant is the owner of land Sy.No.22/1-C of Kaikondarahalli village, Bengaluru South Taluk measuring 1 acre of land, which is converted land ready for alienation as on the date of execution of sale agreement dated 7.1.1994 and on appreciation of the evidence of P.W.1 and that of D.W.1 and considering the documentary evidence placed on record , wherein D.W.1 has not denied the execution of sale agreement in favour of plaintiffs dated 7.1.1994 as per Ex.P.1 and D.W.1 also not denied the execution of 5 sale deeds in pursuance of Ex.P.1 in favour of plaintiffs nominees on different dates as 51 O.S. No.1400/1996 mentioned in the schedule annexed as "B" to "F" along with the plaint filed in O.S. No. 8064/2003. The suit filed by the plaintiffs children for partition and separate possession, wherein it is admitted fact that the defendant herein had executed 5 sale deeds in favour of Smt.N.Shantha and other 4 purchasers in the year 1994 and in this regard the plaintiffs have produced Ex.P.2 to P.6, wherein considering Ex.P.2 to P.6 wherein defendant is party to the sale deed as an executant and the sale deeds are executed in favour of plaintiffs nominees namely Smt.N.Shantha and 4 others and this fact is not denied by D.W.1. However, D.W.1 stated that the purchasers have took him to Sub Registrar office forcibly and obtained 5 sale deeds, but so far D.W.1 has not filed any proceedings nor filed a suit or any other proceedings alleging that the purchasers under 5 sale deeds have got executed sale deeds from him either by exercise of fraud, misrepresentation and coercion etc., On the contrary, D.W.1 himself has executed the sale deeds in favour of plaintiffs nominees on 9.11.1994, on 29.6.1994 and on 2.7.1994 and the sale deeds are executed by defendant in favour of plaintiffs nominees, which are carved out in respect of site No.1 to 5 formed in Sy.No.22/1-C. Now D.W.1 in his written statement filed in this suit and also in his rebuttal evidence contesting the suit contending that he is not the owner of Sy.No.22/1-C of Kaikondarahalli village, Bengaluru South 52 O.S. No.1400/1996 Taluk, but he is the owner of 1 acre of land, which is assigned as Sy.No.22/1-B and as such, he is denying the execution of Ex.P.1 and also defendant contending that he is not liable to execute any sale deeds in favour of plaintiffs over the remaining portion of land/site measuring 4560 square feet. Though D.W.1 has filed written statement and also deposed rebuttal evidence, but D.W.1 has relied upon Ex.D.1 to Ex.D.6 and particularly he relied upon Ex.D.1, which is unregistered partition deed dated 15.9.1982 held between plaintiffs late father Sri. N.Narayanappa and his 7 children in respect of joint family properties. Though D.W.1 has relied upon Ex.D.1 an unregistered partition deed, but as per own admission of D.W.1 himself that he has not filed any application for mutation of his name in katha entries as per this unregistered partition deed dated 15.9.1982, whereas D.W.1 himself admits by conclusive admission that this unregistered partition deed is not acted upon in revenue records and evidence even D.W.1 stated that he is not ready to examine his own brother Sri.B.N.Vasudeva Reddy as witness for him and on perusal of Ex.D.1, wherein this document is unregistered partition deed held between late Narayanappa and his sons, but this document has not given effect to in the revenue records. Though D.W.1 has produced several RTC extracts marked in this case from Ex.D.7 to D.33, wherein though these revenue extracts of RTC shown 53 O.S. No.1400/1996 and standing in the joint names of defendant and his brother Sri.B.N.Vasudeva Reddy in respect of Sy.No.22/1-B from 1992-1993 till the year 2010-2011 and 2012-2013 and some of the RTC extracts shows that Sy.No.22/1-C for the year 2002-2003 is standing in the name of Sri. N.Ramakrishna Reddy son of C.Ramaiah Reddy measuring 1 acre 8 guntas of land and latest RTC produced at Ex.D.32 and 33, wherein it is pertinent to Sy.No.22/1-C standing in the name of Sri. N.Ramakrishna Reddy and Ex.D.33 is in respect of Sy.No.22 measuring 2acres of land, it is in joint names of D.W.1 and his brother Sri.B.N.Vasudeva Reddy son of Narayanappa, wherein the defendant herein has allotted 1 acre land in Sy.No.22/1-B as per Ex.D.33 under katha No.29 and his brother also allotted 1 acre of land in Sy.No.22/1-B. Considering the plaintiffs documents relied as per Ex.P.1, wherein the defendant has executed sale agreement in favour of plaintiff agreeing to convey 1acre of land under Ex.P.1 for Rs.5,25,000/- and schedule mentioned in Ex.P.1(b) i.e., receipt document wherein the schedule is in respect of Sy.No.22/1-C situated at Kaikondarahalli village, Varthur Hobli, Bengaluru South Taluk measuring 1 acre extent of land and it also mentioned that the conversion order made by Deputy Commissioner on 26.11.1993 by making reference of final Memorandum No.DIS/ALN/SR (S) 325/92-93 dated 26.11.1993, wherein 1 acre of land is shown with specific 54 O.S. No.1400/1996 boundaries in the schedule of Ex.P.1(b) and it is admitted fact that the defendant and his brother Sri.B.N.Vasudeva Reddy have jointly filed application for conversion of land Sy.No.22/1-C before Deputy Commissioner, Bengaluru and plaintiff has produced documents marked as per Ex.P.25, wherein final notice is issued to plaintiff and his brother calling upon them to pay betterment charges/conversion charges and phodi charge of Rs.45,560/- and phodi charges Rs.35/- , notice dated 7.10.1939, wherein an amount called for by the Spl. Deputy Commissioner in the notice has been paid by way of challan by defendant and his brother under challan produced as per Ex.P.26 and Ex.P.27, wherein an amount of Rs.35/- is paid towards phodi charges of Sy.No.22/1-C and Rs.45,560/- is paid towards conversion charges in respect of Sy.No.22/1-C and Ex.P.28 is the conversion order measuring 2 acres in Sy.No.22/1-C, wherein the Spl. Deputy Commissioner passed official memorandum on 26.10.1993 as per Ex.P.30 relying upon the reports submitted by Tahasildar, Bengaluru South Taluk dated 10.3.1993 as per Ex.P.28. Hence, it is fact established on record that though D.W.1 has relied upon unregistered partition deed Ex.D.1 dated 15.9.1982 in contending that there was a partition between his father and other brothers, but Ex.D.1 is not given effect to in the revenue records and defendant has brought this document all of a sudden in the 55 O.S. No.1400/1996 suit and produced and relying upon Ex.D.1 in contending that there was partition during life time of his father and Sy.No.22/1-B is allotted to his share and as such, he is not the owner of Sy.No.22/1-C to the extent of 1 acre, but after scrutiny of cross-examination of D.W.1 and considering the evidence of D.W.1, wherein his evidence is not trustworthy, wherein witness changing his version from time to time and he deposed a very strange answers in the cross-examination and as such, considering the documents produced by the plaintiff, wherein 2 acres of land in Sy.No.22/1-C standing in the name of defendant herein and his brother Sri.B.N.Vasudeva Reddy was converted into non agricultural tenure by conversion order passed on 26.10.1993 as per Ex.P.30, wherein 1 acre of land each allotted to the share of defendant and his brother in Sy.No.22/1-C and defendant has already executed 5 sale deeds as per Ex.P.2 to P.6 in favour of plaintiffs nominees namely Smt.N.Shantha and others and hence, there is mutation entry certified in M.R.No.7/87-88 recording the conversion order passed by Spl. Deputy Commissioner as per Ex.P.30 under this mutation entry produced at Ex.D.33 and it is a fact that defendant and his brother Sri.B.N.Vasudeva Reddy have sworn to joint affidavit/agreement executed to be produced in conversion proceedings before learned Deputy Commissioner, Bengaluru and this joint affidavit sworn to by 56 O.S. No.1400/1996 defendant and his brother marked at Ex.D.31 establishes the fact that Sy.No.22/1-C measuring 2 acres of schedule of Ex.D.31 and that of schedule of Ex.P.1 is compared, wherein the schedule of these two documents will tally each other and defendant has not challenged the mutation entry produced at Ex.P.32 and the said mutation entry 7/87-88 still intact in the revenue records and it is not set aside by any competent revenue appellate authority. Hence, there is conversion order in respect of Sy.No.22/1-C on 26.10.1993 as per Ex.P.309 and defendant has already executed sale deed in respect of sites carved out in Sy.No.22/1-C under Ex.P.2 to P.6. Plaintiff has relied upon Ex.P.1 and P.1(b) and defendant has not specifically denied execution of Ex.P.1 and P.1(b). It is admitted fact on record that the son and daughter of defendant had filed a suit in O.S. No. 8064/2003 for partition and separate possession in respect of the alienated land Sy.No.22/1-C and other family properties, wherein they have prayed for cancellation of sale deeds Ex.P.2 to P.6 and children of 1st defendant has prayed for 1/3rd partition relief. The defendant has relied upon documents marked through his evidence from Ex.D.1 to Ex.D.33 and particularly he has relied upon the writ petition order copy in W.P.No.38063- 65/2013 and also the writ petition filed by the purchasers against the orders on I.A.No.6 passed in O.S. No. 8064/2003, wherein plaintiffs in O.S. No. 8064/2003 have 57 O.S. No.1400/1996 filed amendment application under Order 6 Rule 17 of CPC seeking amendment to the plaint schedule in order to substitute Sy.No.22/1-B as suit property and to delete Sy.No.22/1-C in the suit schedule property, wherein the Hon'ble High Court disposed of this writ petition filed by purchasers under Ex.P.2 to P.6 holding that in view of the judgment passed in RFA No.866/2012, wherein initially the suit filed by the plaintiff No.1 and 2, who are son and daughter of defendant herein for partition and separate possession was dismissed before the trial court and the children of defendant herein had preferred RFA No.866/2012 before Hon'ble High Court, wherein the Hon'ble High Court allowed the 1st appeal filed in RFA No.866/2012 on 6.3.2013 and remanded the matter to trial court by setting aside the dismissal of suit and granted an opportunity to the appellants/plaintiffs in that suit to amend the plaint so as to include all the properties and to seek complete partition and it is further also observed in the RFA judgment that the purchasers under Ex.P.2 to P.6 i.e., purchasers of site properties in Sy.No.22/1-C also reserved liberty of equity bases to seek partition in respect of suit schedule properties, which they have purchased seeking allotment of the alienated property to the share of defendant No.1 in that suit and accordingly, there was direction to amend the plaint to the plaintiffs in O.S. No. 8064/2003 to include all other joint 58 O.S. No.1400/1996 family properties and trial court shall allow the application for amendment and to give opportunity to the respondents to file additional written statement and to dispose of the matter afresh in accordance with law and as such, the Hon'ble High Court has disposed of this writ petition produced at Ex.D.4 preferred by purchasers of Ex.P.2 to P.6 namely Smt.N.Shantha and others dismissing the writ petition and permitted the plaintiffs to include the property Sy.No.22/1-B as suit schedule property in O.S. No. 8064/2003 and to delete Sy.No.22/1-C in the schedule of the plaint and defendant has much relied upon this judgment in writ petition marked at Ex.D.4 . But the suit is remanded back for fresh trial and according to admission of D.W.1 himself in this case in his cross-examination that his late father Narayanappa had not filed any worthy or application before revenue authorities to enter the names of himself and other sharers based upon Ex.P.1 dated 15.9.1982, it is unregistered partition deed and even the present defendant has not filed any worthy or application to mutate his name in respect of schedule "D" Properties allotted to his share and D.W.1 himself admits that Ex.D.1 is not acted upon in revenue records though it is came to be executed on 15.9.1982 and even according to the contention of defendant that Sy.No.22/1-C is now allotted to his brother Sri. N.Ramakrishna Reddy , but Sri. N.Ramakrishna Reddy has 59 O.S. No.1400/1996 not filed any suit against purchasers of site properties 1 to 4 in Sy.No.22/1-C under Ex.P.2 to P.6 challenging the said alienation that land Sy.No.22/1-C is belonging to him as per partition deed dated 15.9.1982 and even defendant has not examined any of his brothers to prove Ex.D.1 to show that this unregistered partition deed is acted upon in revenue records and hence, the admission of D.W.1 in respect of Ex.D.1, which is not acted upon amounting to conclusive admission falling within the ambit of Sec.17 of Indian Evidence Act and as such, the documents relied by the defendant as per Ex.D.1, Ex.D.2, Ex.D.3, Ex.D.4 to 6 and other RTC revenue records, wherein once Ex.D.1 the unregistered partition deed was not acted upon in revenue records and as such, the mutation entries showing the name of defendants brothers in respect of land Sy.No.22/1-C, wherein the said mutation entries are effected in collusion with revenue officials and there is no basis or any documents to change the RTC revenue entries and as such, the documents relied by the defendants as per Ex.D.1 to Ex.D.33 are having no relevance and once unregistered partition deed dated 15.9.1982 is not acted upon and as such, Ex.D.1 shall have to be discarded and it appears that the children of defendant have filed the suit in O.S. No. 8064/2003 seeking partition in the alienated property as they have filed this suit in the year 2003, wherein the defendant 60 O.S. No.1400/1996 has alienated properties in respect of site No.1 to 4 carved out in Sy.No.22/1-C in the year 1994 itself and as such, the suit is yet to be heard on merits as the suit is remanded back to trial court for fresh disposal in view of RFA judgment In RFA No.866/2012. Considering the other documents produced and marked through P.W.1 from Ex.D.25 to Ex.D.32, wherein there is already mutation entry certified in MA No.7/87-88 in revenue records on the basis of worthy filed by Village Accountant, Doddakannahalli Group Panchayath, Varthur Hobli, Bengaluru South Taluk dated 19.2.2000, wherein Revenue Inspector of Varthur Hobli had passed order exercising his powers vested under the provisions of Karnataka Land Revenue Act Sec.128 and passed this mutation entry in entering the names of defendant and his brother Sri.B.N.Vasudeva Reddy to the extent of 1 acre each in RA-66-IRR 15.11.1980, wherein Sy.No.22/1-C is mutated in the name of present defendant B.N.Janardhana Reddy and 1 acre of land in Sy.No.22/1-C is recorded in the name of Sri.B.N.Vasudeva Reddy and this mutation entry No.7/87-88 certified in the revenue records marked at Ex.P.32 is still holds good and not set aside by any competent authority or appellate forum and defendant has not challenged this mutation entry No.7/87-88 and even the defendant herein and his brother Sri.B.N.Vasudeva Reddy has filed joint affidavit/agreement sworn to in respect of 61 O.S. No.1400/1996 conversion proceedings before the Spl. Deputy Commissioner as per Ex.P.31 and it appears that as per Ex.P.24, the Deputy Commissioner, Bengaluru District has given final notice to present defendant and his brother to deposit the conversion fees along with phodi charges of Rs.43,560/- and Rs.35/- within 15 days in order to convert land Sy.No.22/1-C measuring 2 acres for non agricultural tenure, wherein the present defendant and his brother Sri.B.N.Vasudeva Reddy jointly filed application for seeking for conversion of this land from agricultural to non agricultural tenure and the Tahasildar, Bengaluru South Taluk after holding enquiry, submitted his report to the Spl. Deputy Commissioner as per Ex.P.28 and submitted no objections to certified this land as non agricultural tenure to convert the same as prayed by the applicants and accordingly, Ex.P.28 is the report submitted by Tahasildar, Bengaluru South Taluk and based upon this report of Tahasildar, Spl. Deputy Commissioner passed order converting this land Sy.No.22/1-C and issued notice to applicants i.e., present defendant and his brother as per Ex.P.29 and conversion order is at Ex.P.30. But considering these documentary evidence marked through P.W.1, wherein the defendant counsel has not cross examined to P.W.1 on these documents and as such, it is deemed that the defendant has no cross-examination on these documents produced by P.W.1 obtained from concerned 62 O.S. No.1400/1996 authority and proper custody, wherein Ex.P.25 to P.32 are admissible piece of evidence to hold that the defendant herein B.N.Janardhan Reddy and his brother Sri.B.N.Vasudeva Reddy were allotted 1 acre of land out of their share and this land 2 acres in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, Bengaluru South Taluk has been converted by the orders of Spl. Deputy Commissioner on 26.10.1993 and the defendant herein has executed sale deeds as per Ex.P.2 to P.6 in respect of sale of 5 sites in Sy.No.22/1-C and had received consideration amount as mentioned in Ex.P.2 to P.6 from the respective purchasers and as such, defendant impliedly admitted execution of Ex.P.1 and Ex.P.1(b) and also defendant admitted execution of sale agreement and receipt Ex.P.1 and Ex.P.1(b) in para No.7 of his written statement and as such, considering the evidence of D.W.1, wherein he deposed contrary evidence to his own document, wherein sec. 91 and 92 of Indian Evidence Act comes into operation, wherein the oral evidence of D.W.1 deserves to be discarded as against the documentary evidence available on record produced and marked through plaintiff/P.W.1, wherein plaintiff has produced original sale agreement marked at Ex.P.1 and Ex.P.1(b) the consideration receipt executed by defendant, wherein D.W.1 has not denied execution of these documents. On the contrary, as per written statement para No.7, the defendant had admitted the 63 O.S. No.1400/1996 execution of Ex.P.1 and P.1(b) and now defendant by relying upon revenue documents as per Ex.D.1 and other RTC extracts now contending that he is not allotted share in respect of land Sy.No.22/1-C and he is falsely contending that his share in allotted land in Sy.No.22/1-B. Hence, this contention of defendant is not acceptable and on the contrary, defendant and his brother have filed joint application for conversion of land in Sy.No.22/1-C , wherein Sy.No.22/1 is larger extent held by defendant and his brother during life time of their father and already defendant has executed sale deeds, which are the subject matter of partition suit filed by children of defendant in O.S. No. 8064/2003 and as such, the purchasers as per sale deed, who are plaintiffs nominees, wherein the said sale deeds are registered under the provision of Registration Act executed on 6.9.1994 and on other subsequent dates in the year 1994 and purchasers are in possession of property sites purchased by him and the suit is being filed by plaintiff No.1 and 2 for the remaining extent of land based upon Ex.P.1, wherein the remaining property in Sy.No.22/1-C is measuring 4560 square feet and defendant has already executed 5 sale deeds to the extent of 22,688 square feet as per Ex.P.2 to P.6, wherein the defendant agreed to convey 1 acre of converted land in respect of Sy.No.22/1-C in favour of plaintiffs for sale consideration amount of Rs.5,25,000/- and Ex.P.1 and 64 O.S. No.1400/1996 Ex.P.1(b) is proved by the plaintiffs and as such, it is proved on record that plaintiffs have paid full consideration amount of Rs.5,25,000/- covered under Ex.P.1 and Ex.P.1(b)( and once defendant admits the execution of Ex.P.1 and Ex.P.1(b), the defendant denied the receipt of balance sale consideration amount of Rs.2,35,000/-, but considering the evidence placed on record, wherein Ex.P.1(b) is executed by defendant, wherein the plaintiffs have made payments in respect of balance sale consideration amount of Rs.2,35,000/- in 3 installments paid on 8.2.1994 by tendering pay order of Union Bank of India, Domlur Branch and they have paid Rs.30,000/- on 8.2.1994 and 1,40,000/- by way of cash and as per Ex.P.1(b), the defendant has returned the post dated cheques issued under Ex.P.1 to the purchasers and defendant acknowledged the receipt of full sale consideration amount by execution of this receipt dated 9.2.1994 in favour of plaintiffs. Hence, plaintiffs have proved Ex.P.1 and Ex.P.1(b). It is fact that the defendant has filed written statement to contest the suit filed by the plaintiffs and thereafter, the defendant has filed I.A.No.9 seeking for amendment of written statement, wherein I.A.No.9 is allowed by this court on 17.11.2009 and permitted the defendant to amend the written statement, wherein the plaintiffs have challenged the order of trial court on I.A.No.9 passed on 17.11.2009, wherein the Hon'ble High Court in 65 O.S. No.1400/1996 W.P.No.927/2012(GM-CPC) dated 30.7.2013 allowed the writ petition and set aside the amendment holding that the defendant intends to introduce entirely new case, which causes prejudice to the plaintiffs. Hence, the entire defense set up by the defendant is not tenable in the eyes of law, wherein the defendant also challenged the documents Ex.P.1 and Ex.P.1(b) contending that they are insufficiently stamped and deserves to be impounded, wherein defendant has filed I.A.No.5 on 22.8.2007 under the provisions of Sec.33 and 34 of Karnataka Stamp Act 1957 and this court after hearing both sides dismissed I.A.No.5 on 25.11.2009 holding that the agreement of sale relied by the plaintiff is dated 7.1.1994 and it is prior to amendment of Karnataka Stamp Act 1957, wherein the amendment was came into effect from 1.4.1995 and though not Ex.P.1, there are recitals regarding handing over of possession of schedule property land bearing Sy.No.22/1-C under agreement of sale and though this agreement dated 7.1.1994 is amounting to conveyance as per Sec.2(d), but this court dismissed I.A.No.5 filed by the defendant on 25.11.2009 and defendant has not preferred any writ petition against orders on I.A.No.5. Hence, the order passed on I.A.No.5 has attained finality and as such, I hold that plaintiffs have duly established their case that the defendant, who is the owner of land Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, Bengaluru South 66 O.S. No.1400/1996 Taluk allotted to his share in a partition and it is converted land, wherein defendant has executed Ex.P.1 and Ex.P.1(b) and received Rs.5,25,000/- towards sale consideration amount from the plaintiff and also plaintiffs have proved that they have paid Rs.2,90,000/- under Ex.P.1 and thereafter they have paid Rs.2,35,000/- under Ex.P.1 receipt, which is acknowledged by defendant, wherein the purchasers under Ex.P.2 to P.6 namely Smt.N.Shantha and others have purchased site properties, which are formed in Sy.No.22/1-C as per registered sale deeds, who are plaintiffs nominees and the area of property sold under Ex.P.2 to P.6 totally worked out at 22,688 square feet, wherein defendant agreed to convey 1 acre of land and there remains an extent of 4560 square feet land area, which is the schedule property and as such, the plaintiffs have got right to enforce the contract against defendant for the remaining extent of land i.e., suit schedule property for 4860 square feet area and hence, I hold that plaintiffs have proved Issue No1. against defendant in respect of payment of balance sale consideration amount and plaintiffs also proved that they have been put in possession of schedule property under part performance of contract under Ex.P.1 and even plaintiffs, who have paid entire sale consideration amount and there is nothing to be performed by the plaintiff in respect of Ex.P.1 transaction, wherein the defendant tried to construct shed in the 67 O.S. No.1400/1996 remaining portion of land in Sy.No.22/1-C on 18.2.1996 denying the claim of plaintiffs to enforce the contract for an extent 4,560 square feet of land and as such, plaintiffs, who have paid entire sale consideration amount of Rs.5,25,000/- and once entire sale consideration is paid by the plaintiffs, there remains nothing for the plaintiff to perform any part of contract, but defendant, who is bound to execute sale deed in favour of plaintiff or their nominees and plaintiffs have stated that they are ready to obtain sale deed in the name of their nominee one Sri.Shankar Reddy and as such, the plaintiffs have also proved readiness and willingness to perform their part of the contract as per Sec.16(c) of Specific Relief Act and as such, plaintiffs have proved and established their case as pleaded in the plaint by leading cogent, oral and documentary evidence, wherein the evidence of D.W.1 is untrustworthy, wherein D.W.1 has given unshaken evidence, which is not trustworthy as evidence of D.W.1 is against documentary evidence and he has obtained his own admission and as such, the defendant failed to prove that the agreement of sale is not enforceable contract under law and as such, Issue No.4 is not proved and established by the defendant as against plaintiffs and accordingly, the entire defense set up by the defendant is deserves to be discarded as it is against documentary evidence and accordingly, I hold that plaintiffs have proved Issue No.1 to 3 against defendant 68 O.S. No.1400/1996 and as such, Issue No.1 to 3 are answered in affirmative and Issue No.4 is not proved and established by the defendant and accordingly, Issue No.4 is answered in negative.
23. Issue No.5: The defendant has taken specific contention in respect of valuation of this suit and payment of court fee, wherein this suit is filed by the plaintiff for the relief of specific performance of contract based upon Ex.P.1 and Ex.P.1(b), wherein Ex.P.1 is the agreement of sale dated 7.1.1994 and Ex.P.1(b) is the annexed receipt dated 9.2.1994 executed within one month from the date of execution of Ex.P.1 is measuring 1 acre converted non agricultural land within the boundaries as shown in the schedule described in Ex.P.1(b) and this suit is filed by the plaintiff for the remaining extent or portion of land in Sy.No.22/1-C as per plaint schedule measuring on the east : 56 feet, West-52 feet, North 84 feet and south 85 feet bounded by east by private road laid in Sy.No.22/1-C, west by private property, north by site No.6 of Sy.No.22/1-C and south by 40 feet wide private road, passing through Sy.No.22/1-C and value of the property shown by the plaintiff is Rs.2,50,000/- and on this valuation slip, the plaintiffs have paid court fee of Rs.17,125/- and on perusal of order sheet, wherein there is office objections raised in this case stating that the plaintiffs have paid deficit court fee of Rs.17,750/- on the relief of 69 O.S. No.1400/1996 specific performance and accordingly, there is office note put up in respect of deficit court fee paid by the plaintiffs for Rs.17,750/- and as per the valuation slip filed by the plaintiffs on 24.2.1996, they have valued the suit at Rs.2,50,000/- for court fee purpose and have paid court fee of Rs.17,125/-.
24. The counsel appearing for the plaintiff filed I.A.No.20 under Sec. 151 of CPC in the above suit on 29.3.2016, wherein plaintiffs have prayed for permission to pay deficit court fee of Rs.17,750/- and have furnished D.D bearing No.880430 dated 24.3.2016 drawn on Canara Bank in favour of Registrar, City Civil Court, Bengaluru with a memo dated 28.3.2016 and prays to accept the same in the interest of justice and equity.
25. The counsel appearing for the defendant after taking notice of I.A.No.20, filed objections to I.A.No.20 contending that as per the objections raised by the Registry of this court at the time of filing the suit in respect of payment of deficit court fee , wherein plaintiff has filed this application under Sec. 151 of CPC for the relief of accepting the deficit court fee and this application came to be filed by the plaintiffs after lapse of 20 years period that too fag end of the trial and this court to take note of the conduct of the 70 O.S. No.1400/1996 plaintiffs in prosecuting the suit, at the same time, the court fee paid by the plaintiffs is not appropriate as per the relief claimed in the plaint. This court has raised Issue No.5 with respect of payment of court fee, no evidence was lead with respect to payment of court fee paid by the plaintiffs, wherein the relief claimed by the plaintiffs in the plaint and the court fee paid by the plaintiffs are not in accordance with law. Therefore, it is for the court to decide Issue No.5 at the time of passing judgment and defendant does not want to say much about the payment of court fee, wherein this court and take suomoto action with respect to this subject matter and the counsel for defendant relying upon the order passed by this court in respect of payment of court fee for insufficiently stamped paper in some other cases in O.S. No.126/2009 and produced Xerox copy of order passed by this court on 28.7.2015 in O.S. No.126/2009 orders on I.A.No.2 on the application filed by defendant No.2 in that suit under Sec. 33 of Karnataka Stamp Act read with Sec.151 of CPC in order to impound the suit agreement dated 13.8.1984 of that suit and this court decided I.A.No.2 by its considered order on 28.7.2015 and order to impound the suit agreement relied by the plaintiffs in O.S. No.126/2009 vide order dated 28.7.2011 and this order is relied upon by the defendant herein. Hence, this court has to decide Issue No.5 at the time of passing judgment keeping in view of orders passed by this court in 71 O.S. No.1400/1996 O.S. No.126/2009, which is annexed to I.A.No.20 and defendant does not want to press this matter. As such, the suit is direction matter, which is to be disposed off on or before 14.4.2016 as per orders made in W.P.No.8008/2015 and defendant counsel filed objections to I.A.No.20 filed by the plaintiffs. Accordingly, I have heard the arguments of both sides on I.A.No.20 at the time of hearing arguments of main suit and counsel for plaintiffs also made reference in respect of payment of deficit court fee in his written arguments filed in this case and counsel for plaintiff submits that there was office objections raised for payment of deficit court fee of Rs.17,750/- dated 24.2.1996 and by mistake and over sight, the same has not been paid and which is noticed at the time of arguments and accordingly, plaintiffs have paid deficit court fee on 28.3.2016, a sum of Rs.17,750/- by way of D.D and filed along with memo and thus counsel for plaintiffs submitted that plaintiffs have paid total sum of Rs.34,875/- as per Sec.40(a) of Karnataka Court Fee and Suit Valuation Act and since suit for specific performance is based on agreement to sell dated 7.1.1994 and plaintiffs have paid the court fee on sale consideration amount shown in the sale agreement dated 7.1.1994 and as such, court fee paid by the plaintiffs is sufficient as per Sec.40(a) of Karnataka Court Fee and Suit Valuation Act and court fee is paid on the sale consideration amount shown in Ex.P.1 and not on the market 72 O.S. No.1400/1996 value as contended by the defendant in his written statement. After hearing the arguments of both sides on this issue, wherein the office has raised objections on 24.2.1996 raising objections that plaintiff has valued the suit at Rs.2,50,000/- and has paid court fee of Rs.17,125/- and plaintiffs have to pay deficit court fee of Rs.17,750/-. The plaintiffs did not pay this deficit court fee when the suit is posted for the stage of arguments and counsel for plaintiffs filed memo on 28.3.2016 in the above suit annexed with D.D for Rs.17,750/- drawn in the name of Registrar, City Civil Court, Bengaluru drawn on Canara Bank towards deficit court fee in compliance the office objections . After hearing the arguments of both sides on I.A.No.20 and memo filed by the plaintiffs and after perusal of office objections , wherein the plaintiffs have left making compliance by paying deficit court fee of Rs.17,750/- even though the suit has reached the stage of arguments and even defendant has not filed any application invoking Order 7 Rule 11(a) and (d) of CPC seeking for rejection of plaint on the ground of non payment of sufficient court fee and non compliance of office objections so far till arguments were heard on the side of plaintiffs and defendant. Hence, this suit is being one for specific performance of contract and plaintiffs are paying deficit court fee at the stage of further arguments of plaintiffs on 28.3.2016 and there is no application filed by the defendant 73 O.S. No.1400/1996 for rejection of the plaint or any sort of any relief for non payment of deficit court fee and as such, the deficit court fee paid by the plaintiffs even at the stage of arguments deserves to be accepted, wherein the plaintiffs are complying the office objections even at the stage of arguments and have paid proper and requisite court fee and plaintiffs have paid deficit court fee of Rs.17,750/- in order to comply the office objections and to pay proper and requisite court fee on the relief as prayed by the plaintiffs. Hence, I.A.No.20 filed by the plaintiffs including memo filed by them dated 28.3.2016 deserves to be accepted and plaintiffs are permitted to pay deficit court fee of Rs.17,750/- in compliance to office objections raised in the check slip, wherein Ex.P.1 is shown with consideration amount of Rs. 25,000/-. Though plaintiffs have prayed for specific performance relief only in respect of remaining portion of land Sy.No.22/1-C measuring 4560 square feet against defendant, but Ex.P.1 is an agreement to sell, which is put in the suit for its enforcement against defendant and as such, as per Sec.40(2) of Karnataka Court Fee and Suit Valuation Act, 1958, wherein in a suit for specific performance, the plaintiff has to pay court fee on the sale consideration amount shown in the agreement to sell and as such, office has rightly raised objections calling upon plaintiffs to pay deficit court fee of Rs.17,750/- and now plaintiffs have prayed for permission to receive the court fee 74 O.S. No.1400/1996 and accordingly, I.A.No.20/memo dated 28.3.2016 deserves to be allowed and as such, in view of payment made by the plaintiffs by paying deficit court fee in order to comply office objections and as such, I hold that plaintiffs have paid proper court fee on the relief of specific performance as per Sec.40(a) of Karnataka Court Fee and Suit Valuation Act and I hold that payment of court fee is just and necessary and as such, Issue No.5 does not survive for consideration at the stage and accordingly, I hold that the plaintiffs have complied the office objections belatedly and as such, the delay in payment of deficit court fee is condoned in the interest of justice and equity and plaintiffs application in I.A.No.20 is allowed and accordingly, I hold that the plaintiffs have paid just and proper court fee and in compliance to Sec.40(a) of Karnataka Court Fee and Suit Valuation Act 1957. Accordingly, Issue No.5 does not survive for consideration and I.A.No.20 and memo filed by the plaintiff is allowed. Hence, I answer Issue No.5 partly in affirmative and partly in negative.
26. Issue No.6 and 7: The plaintiffs have prayed for grant of specific performance decree in respect of the plaint schedule site property, which is remaining portion of land left out in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, Bengaluru South Taluk after sale of 5 sites in favour of 75 O.S. No.1400/1996 plaintiffs nominees under Ex.P.2 to P.6 and plaintiffs have also prayed for consequential relief of injunction against the defendant not to dispossess the plaintiffs from the suit schedule site and this court has already held in Issue No.3 holding that as per Ex.P.1 and under part performance of contract , the defendant has parted with possession of suit schedule property in favour of plaintiffs and plaintiffs possession is proved and established under Sec.53(A) of T.P.Act. Though defendants have filed I.A.No.5 under Sec. 33 and 34 of Karnataka Stamp Act read with Sec.151 of CPC calling upon plaintiffs to pay insufficiently stamped documents and to pay duty and penalty before proceedings for cross-examination of P.W.1 and I.A.No.5 was heard and disposed off on merits by order dated 25.11.2009, wherein I.A.No.5 filed by the defendant under Sec. 33 and 34 of Karnataka Stamp Act 1957 read with Sec.151 of CPC came to be dismissed by this court, wherein the defendant has not preferred any writ petition against rejection of I.A.No.5 before the Hon'ble High Court of Karnataka and as such, order of I.A.No.5 became final and attained finality and as such, the counsel for defendant relied upon orders on I.A.No.2 passed by this court in O.S. No.126/2009 seeking to impound agreement of sale produced by the plaintiffs dated 7.1.1994 in respect of arguments on Issue No.5. But on perusal of proceedings of this suit, wherein the defendants filed 76 O.S. No.1400/1996 application in I.A.No.5 was already dismissed by my predecessor-in-office on merits and as such, this court need not reopen the matter again to sit over that order on I.A.No.5, wherein defendant has not challenged the order passed on I.A.No.5 and as such, defendant has viewed his right in contending that Ex.P.1 is subjected to duty and penalty and this contention of defendant is not to be considered at this stage , wherein I.A.No.5 is disposed off on merits by this court on 25.11.1996. Hence, after considering the case made out by the plaintiffs, wherein plaintiffs have already paid entire sale consideration amount duly acknowledged by the defendant of Rs.5,25,000/- and plaintiffs have proved that defendant has executed sale deeds in respect of sale of 5 sites as per Ex.P.2 to P.6 in favour of plaintiffs nominees in the year 1994 after receiving market value as shown in the sale deeds and now remaining portion of Sy.No.22/1-C is measuring 4560 square feet and agreements Ex.P.1 and P.1(b) has to be enforced for remaining extent of land and wherein plaintiffs have proved their case as pleaded by them and it appears that the children of defendant have filed the suit in O.S. No. 8064/2003 for seeking their alleged partition rights in respect of Sy.No.22/1-B of Kaikondarahalli village and now they have got amended the schedule as per direction in RFA No.866/2012 and suit is pending for adjudication and defendant has not produced any 77 O.S. No.1400/1996 interim order passed in O.S. No. 8064/2003 after remand of the matter in RFA No.866/2012 passed in respect of restraining defendant herein from alienating the schedule property, but whereas defendant has taken contention that he is not the owner of Sy.No.22/1-C of Kaikondarahalli village.
27. The counsel appearing for the defendant in his written arguments specifically contended that the defendant has produced RTC extracts from the year 2001 till date and contended that even as per the revenue records mutated by the revenue authorities, the suit schedule property does not belongs to defendant and defendant is the absolute owner of Sy.No.22/1-B and he also relied upon the order of Hon'ble High Court in W.P.No.30863-65/2013 as per Ex.D.4. After perusal of the written arguments filed by the counsel for the defendant, wherein it is fact that the children of defendant have filed a suit for partition and separate possession in O.S. No. 8064/2003 pending on the file of CCH No.7 and the suit is remanded to trial court i.e., CCH No.7 in RFA No.866/2012 to amend the survey number of schedule property from deleting Sy.No.22/1-C and to insert Sy.No.22/1-B and the suit is now remanded for fresh disposal filed by son and daughter of defendant against defendant and other alienees of schedule property and suit is yet to be adjudicate upon and Hon'ble High Court has dismissed the writ petition filed 78 O.S. No.1400/1996 by Smt.N.Shantha and others against orders on I.A.No.6 filed for amendment of plaint, wherein in the writ petition, it is permitted to the plaintiffs to amend the schedule showing the suit property in Sy.No.22/1-B and not Sy.No.22/1-C . But this fact has to be proved by the plaintiffs in O.S. No. 8064/2003. But in the present case, the plaintiffs have produced voluminous document to show that Ex.D.1 is not acted upon in revenue records and even none of the brothers of the defendant have appeared in the suit and claimed allotment of lands as per Ex.D.1 and even the brother of defendant Sri. N.Ramakrishna Reddy, who stated to be allottee of Sy.No.22/1-C has not appeared and deposed for the defendant as witness and as such, Ex.D.1 is falsely relied by the defendant, which is unregistered partition deed and not acted upon and there is no mutation entry passed in respect of this partition deed dated 15.9.1992. Hence, the documentary evidence produced by the plaintiffs to hold that the defendant is the owner of Sy.No.22/1-C is based upon mutation entry certified in M.R.No.7/87-88 and as such, the written arguments filed by the defendant deserves to be rejected and plaintiffs have proved their entitlement to obtain specific performance decree in respect of remaining portion of site property in Sy.No.22/1-C measuring 4560 square feet and Ex.P.1 and p1(b) are enforceable contract against defendant and after exercise of discretion one vested under 79 O.S. No.1400/1996 Sec. 20 of Specific Relief Act, wherein plaintiffs are entitled to get a decree for specific performance of contract in respect of plaint schedule property, which is stated to be site No.5 carved out in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, Bengaluru South Taluk and now plaintiffs are having possession in respect of schedule site carved out in Sy.No.22/1-C and as such, plaintiffs have already paid entire sale consideration amount to defendant and though defendant has executed 5 sale deeds in favour of purchasers, who are plaintiffs nominees. But defendant evaded the execution of sale deed in favour of plaintiffs and their nominees in respect of plaint schedule property. Hence, plaintiffs are constrained to file the suit for specific performance of contract. Hence, I hold that the plaintiffs are entitled for the relief of specific performance of contract in respect of plaint schedule property ie., site No.5 carved out in Sy.No.22/1-C, which is the portion of converted land of 1 acre and as such, plaintiffs have the right to enforce this contract agreement entered into with defendant dated 7.1.1994 and as such, the defendant is liable to execute sale deed conveying right, title and interest in favour of plaintiffs or their nominees in respect of plaint schedule property and as such, plaintiffs are entitled for the relief of specific performance of contract and also their entitlement for consequential relief of permanent injunction. The plaintiffs have also filed I.A.No.1 80 O.S. No.1400/1996 along with the suit against defendant not to alienate the schedule property in favour of any 3rd parties and I.A.No.2 was filed by the plaintiffs against defendant restraining the defendant, his servants or anybody claiming through him from interfering with peaceful possession and enjoyment of the plaint schedule property or from dispossessing the plaintiffs. The defendant has filed objections to I.A.No.2 only and though defendant has claimed his possession and enjoyment of entire land Sy.No.22/1-C in his objections at para No.3 to I.A.No.2 filed by him. But this court while discussing Issue No.1 to 3 as held that plaintiffs are in possession of plaint schedule property under part performance of contract and as such, plaintiffs are also entitled for the relief of consequential permanent injunction against defendant as prayed in the suit. Hence, there is no bar for this court to grant relief of specific performance of contract as prayed by the plaintiffs, wherein plaintiffs have already paid entire sale consideration amount to defendant as per Ex.P.1 and P.1(b) and plaintiffs have also proved their readiness and willingness in order to comply the ingredients of Sec.16(c) of Specific Relief Act, which is mandatory for obtaining specific performance decree, which is discretionary and equitable relief to be granted by court of specific performance. Hence, plaintiffs have approached this court in seeking the relief in all fairness and with clean hands, 81 O.S. No.1400/1996 whereas the defendant has deposed contrary evidence against documentary evidence produced on record and as such, I hold that the evidence deposed by D.W.1 is not trustworthy and as such, this court has already rejected the defense set up by the defendant and on the contrary, this court accept the evidence of D.W.1 and documentary evidence produced by the plaintiff marked at Ex.P.1 to P.32. Hence, plaintiffs are entitled for the relief of specific performance of contract. Hence, I hold that the plaintiffs are entitled for the relief of specific performance of contract and for the relief of permanent injunction prayed by them as ancillary relief along with main relief. Accordingly, Issue No.6 and 7 are answered in affirmative.
28. Issue No.8: In view of my findings submitted on Issue No.1 to 7 and for the reasons recorded on each issue, wherein suit filed by the plaintiffs deserves to be decreed with costs against defendant filed for the relief of specific performance of contract and for other consequential reliefs. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiffs against defendant herein for the relief of specific performance of contract based upon 82 O.S. No.1400/1996 Ex.P.1 and Ex.P.1(b) dated 7.1.1994 and 9.2.1994 are hereby decreed with costs.
It is ordered and held that plaintiffs are entitled for the relief of specific performance of contract in respect of plaint schedule property bearing site No.5 carved out in Sy.No.22/1-C of Kaikondarahalli village, Varthur Hobli, Bengaluru South Taluk measuring 4560 square feet, wherein defendant is hereby directed to execute regular registered sale deed in favour of plaintiffs or their appointed nominees within 3 months from the date of pronouncement of judgment by this court and if defendant fails to execute the registered sale deed as ordered by this court, then plaintiffs is having right to execute the specific performance decree against defendant and to obtain sale deed at their expenses through process of law as contemplated under Order 21 Rule 34 of C.P.C.
It is further ordered and decreed that the defendant, his agents, servants or anybody claiming under him are restrained not to dispossess the plaintiffs from the suit schedule property in any manner and also not to interfere in their possession and further defendant shall not alienate the suit schedule property in favour of any 3rd parties, creating any encumbrance or 3rd party rights till plaintiffs obtains 83 O.S. No.1400/1996 sale deed in their favour in respect of plaint schedule property.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 15th day of April , 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.B.V.Dayanand List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale dated:7/1/1994
Ex.P.1(a) Signature of defendant
Ex.P.1(b) Receipt for having received
amount(consideration receipt)
Ex.P.2 to 6 Certified copy of sale deed executed by
defendant in favour of person named by
plaintiffs on different dates in
Sy.No.22/1C
Ex.P.7 to 20 Photographs pertaining to Sy.No.22/1C
84 O.S. No.1400/1996
Ex.P.7(a) to 20(a) Negatives
Ex.P.21 Photo showing the road leading from
Sy.No.16/2 to Sy.No. 22/1C
Ex.P.21(a) Negative
Ex.P.22 Layout plan in respect of Sy.No. 22/1C
Ex.P.23 Certified copy of plaint O.S.No.8064/2003
filed by children of defendant dated:
3/11/2003
Ex.P.24 Vakalathnama of defendant filed on
14/11/2003
Ex.P.25 Certified copy of final notice issued to
defendant and his brother Vasudevareddy
by Spl.DC, Bengaluru
Ex.P.26 Certified copy of receipt for having
depositing an amount of Rs.35/-towards
phodi charges dated: 12/10/1993
Ex.P.27 Certified copy of receipt dated:
17/10/1993 for having paid betterment
charges of Rs.43,560/-
Ex.P.28 Certified copy of report submitted by
Tahsildar to Spl.DC, Bengaluru
Ex.P.29 Certified copy of notice issued by
Spl.DC,Bengaluru to defendant and his
brother regarding order of conversion of
Sy.No.22/1C dated: 12/4/1993
85 O.S. No.1400/1996
Ex.P.30 Certified copy of Commissioner order
dated: 26/10/1993
List of witnesses examined for defendant:
D.W.1 Sri. B.N.Janardhan Reddy
List of documents exhibited for Defendant:-
Ex.D.1: Certified copy of partition deed dated:
15/9/1982 Ex.D.2 Certified copy of endorsement issued by Bangalore Development Authority dated:26/4/1993 Ex.D.3 Certified copy of conversion order dated:
7/2/2003 Ex.D.4 Certified copy of writ petition order in W.P.No.38063/2013 Ex.D.5 to 7 Certified copy of three RTC extracts (1992 to 93 till 2001-02 in respect of Sy.No.22 Ex.D.8 to 33 26 RTC extracts XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 86 O.S. No.1400/1996 87 O.S. No.1400/1996