Bangalore District Court
Sri.K.Vijay Kumar vs Sri.D.Suresh on 25 February, 2021
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH75)
Dated this 25th Day of February 2021
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 26556/2011
PLAINTIFF: SRI.K.VIJAY KUMAR
S/o.Sri.K.R.Krishna Rao
Aged about 60 years
R/at: No.4, Muthyalamma Street 'K'
Shivajinagar
Bengaluru - 560001.
(REP BY: SRI.M.D.RAGHUNATH ADVOCATE)
V/s
DEFENDANTS: 1 SRI.D.SURESH
S/o.Sri.T.Devaraja
Aged about 40 years
O/at: No.49, Ring Road
Sri.Raghavendra Nagar
HRBR Layout
Kalyannagar Post
Bengaluru - 560043.
2 SRI.JOSEPH CHACKO
S/o.Late.P.J.Chacko
Aged about 55 years
2
OS.26556/2011
Chairman and CEO
CEHD Properties
No.545, Hennur Road Cross
Kalyan Nagar
Bengaluru - 560043.
3 SRI.RAJAPPA
S/o.Late.Sri.Kempanna
Aged about 48 years
4 SMT.RADHAMMA
W/o.Sri.Rajappa
Aged about 41 years
BOTH ARE R/AT:
Gonigattapura village
Kugur Post
Sarjapura Hobli
Anekal Taluk
Bengaluru urban district.
5 SRI.S.KUMAR
S/o.Shanmugam Chettiyar
Aged about 61 years
R/at: No.1692, III Cross
Opp Hennur 10th Depot
HBR Layout
Kalyan Nagar
Bengaluru - 560043.
Date of Institution of the suit 03/09/2011
Nature of the Suit (Suit on pronote, suit for
declaration and possession, suit for DECLARATION & POSSESSION
injunction, etc.)
3
OS.26556/2011
Date of the commencement of recording of
31/07/2018
the Evidence.
Date of pronouncement of Judgment 25/02/2021
Total duration Year/s Month/s Day/s
09 05 22
JUDGMENT
Plaintiff has filed the instant suit to declare that, he is the absolute owner of suit property, sale deed dated:28/09/2006 executed by A.Muniraju in favor of 1 st defendant in respect of suit property is not binding on him, mandatory injunction directing the 5 th defendant to demolish the building existing in the suit property and hand over the vacant possession of the said property to him, pay damages of Rs.25,000/ per month from the date of the suit till handing over the vacant possession and to pay litigation cost of Rs.1,00,000/.
FACTS OF THE CASE:
2. Plaintiff is the absolute owner of suit property i.e., sites No.11 bearing Katha No.234/5 situate at Horamavu Agara village, K.R.Puram Hobli, Bengaluru 4 OS.26556/2011 South Taluk. He purchased the said site along with site No.12 under the Registered sale deed dated:22/05/1993 executed by mother of 2nd defendant. Plaintiff contends that, he purchased the said sites in view of persuasion made by the 2nd defendant and on his assurance that, in case of any litigation arise in future, he will resolve the said litigation. Plaintiff contends that, since the date of purchase he has been in possession and enjoyment of suit site. In the month of March 2011, when he visited the suit property, he came to know that, 1 st defendant was putting up construction in the said site. When he enquired the 1 st defendant about his right to put up construction in the suit site, the 1st defendant threatened him and stated that, he purchased the said site. Plaintiff contends that, after obtaining Encumbrance Certificate of the suit site, he came to know that, the 1st defendant created sale deed dated:28/09/2006 in his favor in respect of suit site.
Plaintiff contends that, he purchased the suit site in the year 1993. Therefore 1st defendant cannot purchase the 5 OS.26556/2011 said site in the year 2006. Therefore the sale deed dated:28/09/2006 made in the name of 1 st defendant in respect of suit site is null and void and not binding on him. Plaintiff contends that, in respect of Site No.12, one Mahesh filed OS.No.2652/2011 in CCH6 and in the said case by way of counter claim, he sought the relief of declaration and possession. Plaintiff contends that, 1 st defendant is in illegal occupation of suit site. Therefore he is liable to pay mesne profit/ damages at Rs.25,000/ per month. Plaintiff contends that, 1 st defendant who is not having any manner of right, title and interest over the suit site, is liable to handover the vacant possession of said site to him by demolishing the illegal construction made therein. Plaintiff contends that, 2nd defendant by making false promise, persuaded him to purchase the suit site which is in litigation and thereby caused hardship and mental agony to him. Therefore he is liable to pay compensation & litigation expenses of Rs.1,00,000/. On these and other grounds stated in the original plaint, plaintiff sought the 6 OS.26556/2011 reliefs of declaration to declare that, he is the owner of suit site & the sale deed dated:28/09/2006 made in favor of 1st defendant in respect of suit site is null and void, direct the 1st defendant to demolish the illegal construction made in the suit site, hand over the vacant possession of the said site to him, mesne profit at Rs.25,000/ per month and direct the 2nd defendant to pay litigation expenses of Rs.1,00,000/.
3. After defendants 1 & 2 filed written statements, plaintiff amended the plaint and impleaded defendants 3 to 5 by contending that, during the pendency of the suit, defendants 3 & 4 purchased the suit site along with illegal construction made thereon by 1 st defendant and later on defendant 3 & 4 sold the said property to 5 th defendant. Plaintiff contends that, now 5 th defendant is in possession of suit property. Therefore plaintiff sought the relief of possession, mandatory injunction and damages against 5th defendant.
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OS.26556/2011
4. After service of summons, 1 st defendant though appeared through counsel, did not contest the suit by filing written statement.
5. 2nd defendant filed written statement denying the plaint averments in toto. He denied that, he persuaded the plaintiff to purchase sites No.11 & 12 by giving assurance that, in case if any dispute arise in respect of the said site, he will resolve the said dispute. 2 Nd defendant contends that, he is no way concerned to the suit site. Plaintiff unnecessarily impleaded him as a party to the suit. Therefore he is misjoinder to the suit. On these and other grounds stated in the written statement, 2 nd defendant prays to dismiss the suit.
6. Defendants 3 & 4 filed the written statement and the same was adopted by 5 th defendant. They contend that, one Sri.Muniyappa was the owner of land in Sy.No.88/3 of Horamavu Agara village, K.R.Puram Hobli, Bengaluru East Taluk. He formed sites in the said land. He died on 17/10/1991 leaving behind his wife 8 OS.26556/2011 Smt.Jayamma & two sons namely M.Ramachandra & M.Anand to succeed his estate. Therefore on the death of Sri.Muniyappa, his wife and children as Class1 heirs would succeed to his estate. They sold site No.11 to one Smt.J.Agnes by executing registered sale deed dated:04/04/2003. Since the date of purchase, Smt.Agnes had been in possession of the suit site. Under the registered sale deed dated:20/04/2005 Smt.J.Agnes sold the suit site in favor of A.Muniraj. From the date of purchase, the said Muniraj was in possession of the suit site. Under the registered sale deed dated:28/09/2006 the said Muniraj sold the suit site in favor of 1 st defendant. After purchase, the 1st defendant constructed building consisting of ground, 1st and 2nd floor. Defendants 3 to 5 contend that, under the registered sale deed dated:31/03/2010, defendants 3 & 4 purchased the suit site with building from 1st defendant and they sold the said property to 5th defendant by executing sale deed dated:19/06/2017. Defendants 3 to 5 contend that, now 9 OS.26556/2011 defendant No.5 as absolute owner, is in possession of the suit site with the building existing thereon. They contend that, the mother of 2nd defendant was not having right, title, interest or authority to execute sale deed dated:25/02/1993 in favor of plaintiff. Therefore under the said sale deed, plaintiff did not derive right, title, interest and possession over the suit site. Defendants 3 to 5 contend that, plaintiff has no manner of any right, title and interest in or over the suit site or any portion thereof. He was never in possession of the suit site. Therefore he is not entitled for any of the reliefs prayed for. On these and other grounds stated in the written statement, defendants 3 to 5 pray to dismiss the suit.
7. On the basis of the aforesaid pleadings, on 20/01/2012 & 31/07/2018 the then presiding officers have formulated following Issues and Additional Issue:
ISSUES
1. Whether the plaintiff proves that, he is the absolute owner of the suit schedule property?10
OS.26556/2011
2. Whether the defendant No.1 is in unauthorized possession of suit property who is liable to deliver vacant possession of the suit property to the plaintiff?
3. Whether the plaintiff proves that, the sale deed dated:28/09/2006 is not binding on plaintiff?
4. Whether the defendant is liable to pay Rs.1,25,000/ as a cost of litigation and damages?
5. Whether the suit is bad for misjoinder of parties?
6. What order or decree?
ADDITIONAL ISSUE
1. Whether the suit is bad for nonjoinder of necessary parties?
8. Plaintiff examined himself as PW1 and produced documents marked at Ex.P.1 to P.25. 2 nd defendant was examined as DW1 & 5 th defendant was 11 OS.26556/2011 examined as DW2. 5Th defendant produced documents marked at Ex.D.1 to Ex.D.9.
9. Heard the arguments on both side and perused record.
10. My findings on the above issues are as under:
Issue No.1: In the Negative.
Issue No.2: In the Negative.
Issue No.3: In the Negative.
Issue No.4: In the Negative.
Issue No.5: In the Negative.
Addl. Issue No.1: In the Negative.
Issue No.6: As per the final order for the following:
REASONS
11. ISSUE NO.1: Plaintiff who was examined as PW1 has reiterated and reaffirmed the plaint averments. He produced Ex.P.1 Sale deed dated:22/05/1993, Ex.P.2 GPA, Ex.P.3 Layout Plan, Ex.P.4(1 to 7) Tax paid receipts, Ex.P.5 & 6 Demand register extracts, Ex.P.7 & 8 Form 12 OS.26556/2011 No.B, Ex.P.9 to 14 sale deeds, Ex.P.15 to 18 Encumbrance Certificates, Ex.P.19 & 20 Copy of Legal notices, Ex.P.21 Reply Notice, Ex.P.22 judgment and decree passed in OS.No.5363/2012, Ex.P.23 plaint in OS.No.5363/2012, Ex.P.24 written statement in OS.No.5363/2012 & Ex.P.25 Sale deed dated:10/02/1994.
12. 5th defendant who was examined as DW2 has reiterated and reaffirmed the facts stated in written statement. He produced Ex.D.1 Death certificate, Ex.D.2 Sale deed dated:04/04/2003, Ex.D.3 Sale deed dated:20/04/2005, Ex.D.4 Sale deed dated:31/03/2010, Ex.D.5 Sale deed dated:19/06/2017, Ex.D.6 Memorandum of deposit of title deeds, Ex.D.7 Service certificate, Ex.D.8 Judgment in OS.No.2652/2011 & Ex.D.9 Evidence in OS.No.2652/2011.
13. In the plaint and PW1 in the evidence has not stated, from whom he purchased the suit site. A perusal of Ex.P.1 certified copy of sale deed dated:25/02/1993 would show that, it was executed by Sarojini Chacko as 13 OS.26556/2011 attorney holder of C.Muniyappa. 5Th defendant (DW2) has stated that, C.Muniyappa was the owner of land in Sy.No.88/3 of Horamavu Agara village, K.R.Puram, Benglauru, he formed sites in the said land, he died on 17/10/1991 leaving behind his wife Smt.Jayamma & two sons namely M.Ramachandra & M.Anand to succeed his estate, they sold site No.11 i.e., suit site in favor of Smt.J.Agnes under Ex.D.2 Registered sale deed dated:04/04/2003. Since the date of purchase, Smt.Agnes was in possession of the said site. Under Ex.D.3 registered sale deed dated:20/04/2005 Smt.Agnes sold the suit site in favor of A.Muniraju. Since the date of purchase, A.Muniraju was in possession of the said site. DW2 has stated that, under the registered sale deed dated:28/09/2006 A.Muniraju sold the suit site in favor of 1st defendant. Since the date of purchase 1 st defendant was in possession of the suit site and he constructed a building consisting of ground, 1 st & 2nd floor. DW2 has stated that, under Ex.D.4 sale deed dated:31/03/2010 1 st 14 OS.26556/2011 defendant, his wife & children sold the suit site with building existing therein in favor of defendants 3 & 4. since purchase defendants 3 & 4 were in possession of the suit property. DW2 has stated that, he purchased the suit property from defendant 3 & 4 under Ex.D.5 sale deed dated:19/06/2017. Since then he has been in possession & enjoyment of the said property. He stated that, by mortgaging the suit property, he availed loan from M/s.Diwan Housing Finance Corporation Limited. Ex.D.6 is the certified copy of Memorandum of deposit of title deeds. Ex.D.7 is the Service certificate issued by BESCOM stating that, power supply was given to the house existing in the suit property in the name of 1st defendant.
14. Plaintiff has not disputed the documents produced by defendants. He contends that, he purchased the suit property under Ex.P.1 Registered Sale Deed dated:25/02/1993. Therefore the subsequent sale deeds produced by defendants 3 to 5 in respect of suit site registered on 04/04/2003, 20/04/2005, 28/09/2006, 15 OS.26556/2011 31/03/2010 & 19/06/2017 would not convey right, title and interest of suit property. Therefore the said sale deeds are not valid and binding on him.
15. In the instant case, there is no dispute that,the suit site originally belonged to Muniyappa. Plaintiff and defendants 1 & 3 to 5 claiming title over the suit site through Muniyappa. A perusal of Ex.D.1 Death certificate would show that, Muniyappa died on 17/10/1991. Ex.P.1 Sale deed was registered on 25/02/1993 i.e., after the death of Muniyappa. As per Sec.201 of Contract Act, a power of attorney would come to an end on revocation of either principal or agent or on their death. Sec.202 of the Contract Act is an exception to Sec.201.
16. As per Sec.202 of the Contract Act, where an agent acquires an interest over the property in respect of which an agency was created, the principal/ donor cannot cancel the said agency causing prejudice to the said interest in the absence of an express contract and the said agency would not come to an end even on the death of 16 OS.26556/2011 principal/ donor. Therefore in the instant case, the point for consideration is, whether, after the death of Muniyappa, his attorney i.e., Smt.Sarojini Chako who executed Ex.P.1 Sale deed in favor of plaintiff was having rightful authority to execute the said sale deed.
17. In the plaint or PW1 in the evidence has not stated, on which date Muniyappa executed Power of Attorney in favor of Smt.Sarojini Chacko. The name of Smt.Sarojini Chacko is not stated either in the plaint or in the evidence of PW1. In the plaint it is not stated that, Muniyappa executed Power of Attorney in favor of Smt.Sarojini Chacko by creating interest, therefore the said power of attorney would remain in force even after the death of Muniyappa. Therefore due to want of pleadings, the Court is not inclined to countenance the submission of the learned counsel for the plaintiff that, under Ex.P.2 Power of Attorney interest was created in favor of Attorney holder Smt.Sarojini Chacko, therefore the said power of attorney would remain in force even after the death of 17 OS.26556/2011 Muniyappa and it can be out rightly rejected. Be that as it may.
18. The learned counsel for the plaintiff has strenuously contended that, Muniyappa by executing Ex.P.2 Power of Attorney in favor of Smt.Sarojini Chacko, handed over the possession of the property by authorizing her to sell, execute lease deed, gift deed, mortgage deed, construct building, give the property on rent, collect the profits, pay tax, avail loan, receive compensation if the property is acquired by government, engage counsel, etc. He stated that, from the nature of powers given to agent under Ex.P.2 Power of Attorney it is clear that, the said poewr of attorney was made to create interest in favor of agent as contemplated U/Sec.202 of Contract Act. In support of his arguments he placed reliance on the judgment of the Hon'ble High Court of Karnataka in the case of "MOHAMMED @ PODIYA V/s. ASST.
COMMISSIONER" reported in ILR 1993 KAR 2306. The 18 OS.26556/2011 learned counsel for the plaintiff pressed into service para No.5 of the judgment and it reads thus:
"Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot in the absence of any express condition be terminated to the prejudice of such interest. The principle is that, when an agreement is entered into on a sufficient authorisation whereby an authority is given for the purpose of giving some benefit to the donee of the authority such an authority is irrevocable. An authority coupled with interest is not determined by death, insanity of bankruptcy of the principal where the agent made advances to the principal and is authorised to sell at best price and recoup advances made by him, the agency is one coupled with interest and is irrevocable. Where all the rights and liabilities under a contract were made over by a power of attorney, such power is an agency coupled with interest."
19. To appreciate the submissions of the learned counsel for the plaintiff, it would be convenient to extract Sec.202 of Contract Act with illustrations.
"202. Termination of agency, where agent has an interest in subject-matter.-- Where the agent has himself an interest in the property which forms the subject- matter of the agency, the agency cannot, in 19 OS.26556/2011 the absence of an express contract, be terminated to the prejudice of such interest. --Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. Illustrations
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. (a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
19. Plaintiff by stating that, he produced the original GPA in another case has produced its certified copy and it is marked at Ex.P.2. For convenience, the powers given by 20 OS.26556/2011 Muniyappa to his attorney under Ex.P.2 Power of Attorney, Smt.Sarojini Chacko are extracted below in extenso.
1. To look after, maintain, manage the property in the best manner as my attorney deems fit, on my behalf.
2. To execute sale agreement, or agreement of lease, gift, mortgage, etc, in respect of schedule property with any persons, for any amount, receive advance amount, issue receipt, apply to the competent authority seeking permission to execute such documents, sing all forms, deeds, such as sale, lease, gift, mortgage, etc., execution thereof, receive amount, issue receipt on my behalf.
3. To pay all future taxes, receive receipts, apply for transfer of Khata in my name on my behalf.
4. To apply for sanctioned plan for construction of any type of building to construct the building, use the same as my attorney deems fit, get all rents, profits, issue receipts on my behalf.
5. To represent in respect of schedule property in all Govt. Offices, BDA, BWSSB, KEB, Corporation, Panchayath, etc., apply for any records, documents, facilities, receive the same on my behalf.
6. To engage any other agents, attorneys if my attorney finds it necessary on my behalf.
7. To raise loans on the security of schedule property and to execute necessary document on my behalf.
8. To receive the compensation amount in case schedule property is acquired by the Government and to sue for enhancement thereof.
9. In case of complication to sue the same in proper court of lay ensuring the services of an advocate, sign all forms, deeds, vakalath, suits, petitions, etc., produce any document in court, take any document from the court, give evidence, obtain decree, execute the same or enter into compromise or to approach higher court.
21
OS.26556/2011
10. To maintain proper accounts for all expenses and income.
11. I retain the right to revoke this power of attorney.
12. Schedule property is inherited by me from my ancestors and am in possession and enjoyment thereof and the same is free from all encumbrance.
13. Schedule property to do all such acts, deeds and things in respect of schedule property and I do hereby agree to ratify, confirm all such acts, deeds and things done by me attorney as the acts, deeds and things done by me in person.
(underlining is mine)
21. A perusal of the above excerpted powers given by Muniyappa to his attorney Smt.Sarojini Chacko it is clear that, at the time of execution of Ex.P.2 or prior to that, Muniyappa was not having any liability towards the attorney. He has also not handed over the possession of the property to attorney. In Ex.P.2 it is stated that, Muniyappa is in possession of the property and he authorized his attorney to do the above stated acts on his behalf. Therefore the recitals of Ex.P.2 Power of Attorney would not fulfill the requirements of Sec.202 of Contract Act.
22. I went through the judgment in the case of "MOHAMMED @ PODIYA V/s. ASST. COMMISSIONER". In 22 OS.26556/2011 the said case, government allotted an agricultural land and issued occupancy right in favor of the allottee interalia by imposing a condition that, he shall not alienate the land for a certain period. Before the expiry of the said period, the allottee executed power of attorney. In the power of attorney, it is stated that, the principal/donor received a sum of Rs.65,000/ from the agent and authorized the agent to sell the property after expiry of the stipulated period for not less than Rs.70,000/ and in the sale proceeds. The agent is entitled to deduct Rs.65,000/ which he paid to the principal/donor. Having regard to the above condition in the power of attorney, the Hon'ble High Court of Karnataka has held that, it fulfill the requirements of Sec.202 of Contract Act. As I have already stated above, in Ex.P.2 Power of attorney it is not stated that, at the time of making the said power of attorney, the principal namely Muniyappa was having any liability to his agent Smt.Sarojini Chacko and he has not authorized his agent to adjust the proceeds of sale or rent amount or the 23 OS.26556/2011 compensation amount in case of acquisition of the land towards any liability. Therefore having regard to the recitals of Ex.P.2 Power of Attorney, the above cited judgment is not applicable to the case on hand. In view of the above, I hold that, plaintiff failed to prove that, Ex.P.2 Power of attorney would fulfill the requirements of Sec.202 of Contract Act. Therefore, as per Sec.201 of Contract Act, Ex.P.2 Power of Attorney would come to an end on the death of Muniyappa which took place on 17/10/1991. In Ex.P.1 Sale deed it is stated that, the said sale deed was executed by C.Muniyappa through his attorney holder Smt.Sarojini Chacko. In view of my finding that, Ex.P.2 Power of attorney would come to an end on 17/10/1991, Smt.Sarojini Chacko would have no authority to execute the said sale deed on behalf of Muniyappa a death person. Therefore Ex.P.1 Sale deed is having no value in the eye of law and it would not convey any kind of right, title & interest over the suit site in favor of plaintiff. In view of my finding that, Ex.P.1 Sale deed is having no value in the eye 24 OS.26556/2011 of law and it would not convey right, title and interest of suit property in favor of plaintiff, Ex.P.3 Layout plan, Ex.P.4 (1 to 7) Tax paid receipts, Ex.P.5 & 6 Demand register extracts, Ex.P.7 & 8 Form No.B and Ex.P.15 to 18 Encumbrance certificates made on the basis of Ex.P.1 are of no assistance to the plaintiff to prove his title over the suit property. In view of the above, I answer Issue No.1 in the NEGATIVE.
23. ISSUE NO.2 & 3: To avoid repetition of facts and evidence and for convenience these two issues are taken together for consideration.
24. 5th defendant (DW2) has stated that, after the death of Muniyappa on 17/10/1991, his wife and 2 sons would succeed to his estate and they sold the suit site in favor of Smt.J.Agnes under Ex.D.2 Registered sale deed dated:04/04/2003. Under Ex.D.3 registered sale deed dated:20/04/2005 Smt.Agnes sold the suit site in favor of A.Muniraju. Under the registered sale deed dated:28/09/2006 A.Muniraju sold the suit site in favor of 25 OS.26556/2011 1st defendant. He constructed a building consisting of ground, 1st & 2nd floor. Under Ex.D.4 sale deed dated:31/03/2010 1st defendant, his wife & children sold the suit site with building existing therein in favor of defendants 3 & 4. DW2 has stated that, under Ex.D.5 sale deed dated:19/06/2017, he purchased the suit property from defendants 3 & 4. As I have already stated above, plaintiff has not disputed the execution of the above sale deeds. He contends that, Muniyappa executed Ex.P.2 Power of Attorney by creating interest in favor of Smt.Sarojini Chacko, therefore the said power of attorney would not come to an end on the death of Muniyappa, therefore his wife and children have no authority to sell the suit site. In view of my finding on Issue No.1 that, Ex.P.2 Power of attorney was not made to create interest in favor of attorney holder Sm.Sarojini Chacko as per Sec.202 of Contract Act, the above contention of the plaintiff would fall on the ground. Except the above contention, plaintiff has not raised any other contention to attack the validity of 26 OS.26556/2011 sale deeds executed by wife and children of Muniyappa & the subsequent sale deeds from 1st defendant to 5th defendant. In view of the above and in view of my finding on Issue No.1, I hold that, plaintiff failed to prove that, sale deed dated:28/09/2006 executed by Muniraj in favor of 1 st defendant is null and void and the 1st defendant is in illegal and unauthorized occupation of the suit property. On the other hand from the material on record would show that, 1st defendant as owner of the suit property was in possession of the said property. In view of the above I answer Issue No.2 & 3 in the NEGATIVE.
25. ISSUE NO.4: In view of my finding that, at the time of filing the instant suit, 1 st defendant as owner, was in possession of the suit property, he is not liable to pay either damages or mesne profit to plaintiff.
26. Plaintiff claimed litigations expenses of Rs.1,00,000/ form 2nd defendant by contending that, on his persuasion and assurance that, his mother Sarojini Chacko having valid title over the suit property and in case 27 OS.26556/2011 any dispute arise, he will resolve the same, he (plaintiff) purchased the suit site.
27. It is settled principle of law that, it is the duty of the buyer to collect information about the title of his vendor. Without verifying the title of vendor, if he purchased the property, he has to blame himself and not others. It is not the contention of the plaintiff that, 2 nd defendant in writing given undertaking to him that, after execution of Ex.P.1 Sale deed, if any dispute arise in respect of suit property, he will resolve the said dispute in his cost. In the absence of such agreement between plaintiff and 2 nd defendant, plaintiff is not entitled to claim litigation expenses from 2 nd defendant. In view of the above, I answer Issue No.4 in the NEGATIVE.
28. ISSUE NO.5 & ADDL. ISSUE NO.1: In view of the contention of the plaintiff that, he purchased the suit property in view of persuasion and assurance of 2 nd defendant that, his mother Sarojini Chacko having valid title over the suit property and in case if any dispute arise, 28 OS.26556/2011 he will resolve the same,. Therefore the 2 nd defendant is liable to pay litigation expenses of Rs.1,00,000/ to him. 2nd defendant cannot be said to be misjoinder.
29. Defendants 3 & 4 baldly contend that, the suit is bad for nonjoinder of necessary party. A perusal of record would show that, initially plaintiff has filed the instant suit only against defendants 1 & 2. Thereafter he impleaded defendants 3 to 5. The last sale deed of suit property was made in the name of defendant No.5. Therefore all the parties having interest in the suit property at the time of filing the suit and also acquired interest during he pendency of the suit, were made as parties. Therefore the contention of defendants 3 & 4 that, the suit is bad for nonjoinder of necessary party is not sustainable. In view of the above, I answer Issue No.5 & Addl. Issue No.1 in the NEGATIVE.
30. ISSUE NO.6: In view of my reasons & findings on Issues 1 to 5 & Addl. Issue No.1, I pass the following:
29
OS.26556/2011 ORDER Plaintiff's suit is dismissed. No order as to costs.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 25th day of February 2021) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) :ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 K.VIJAY KUMAR LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Sale deed dated:22/05/1993
Ex.P.2 General Power of Attorney
Ex.P.3 Layout plan
Ex.P.4(1 to 7) Tax paid receipts
Ex.P.5 & 6 Demand register extracts
Ex.P.7 & 8 Form No.B
Ex.P.9 to 14 Sale deeds
Ex.P.15 to 18 Encumbrance certificates
Ex.P.19 & 20 Copy of Legal notices
Ex.P.21 Reply notice
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OS.26556/2011
Ex.P.22 Judgment and Decree in OS.No.5363/2012
Ex.P.23 Plaint in OS.No.5363/2012
Ex.P.24 Written statement in OS.No.5363/2012
Ex.P.25 Sale Deed dated:10/02/1994.
LIST OF WITNESS EXAMINED FOR DEFENDANTS:
DW1 JOSEPH CHACKO
DW2 S.KUMAR
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D.1 Death certificate Ex.D.2 Sale deed dated:04/04/2003 Ex.D.3 Sale deed dated:20/04/2005 Ex.D.4 Sale deed dated:31/03/2010 Ex.D.5 Sale deed dated:19/06/2017 Ex.D.6 Memorandum of deposit of title deeds Ex.D.7 Service certificate Ex.D.8 Judgment in OS.No.2652/2011 Ex.D.9 Evidence in OS.No.2652/2011 (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)