Bangalore District Court
K. Muniyappa vs Sri. Krishnappa on 16 March, 2022
KABC010149412011
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF V ADDL.CITY CIVIL COURT AT
BENGALURU
(CCH.No.13)
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 16th day of March, 2022.
O.S. No.3064/ 2011
PLAINTIFF: K. Muniyappa,
S/o Late Krishnappa,
Aged about 55 years,
R/at No.91/11, BBMP
Ward No.23, Bilekahalli
Village, Bengaluru South Taluk.
(By Sri.VBS, Advocate)
/VS/
DEFENDANTS: 1. Sri. Krishnappa,
S/o Muniyellappa,
Aged about 55 years
2. Smt. Sanjeevamma,
W/o Sri. Krishnappa,
Aged about 47 years
3. Smt. Renuka&Renukamma,
D/o Sri. Krishnappa,
Aged about 29 years
4. Smt. Anusuya,
D/o Sri. Krishnappa,
Aged about 27 years
5. Smt. Sumangala,
D/o Sri. Krishnappa,
Aged about 25 years
6. Sri. Naveen Kumar,
S/o Krishnappa,
Aged about 23 years
2
O.S. No.3064/2011
Defendants 1 to 6 are all
Residing at Nadubeedi,
Near Dharmarayaswamy Temple,
Bilekahalli, Bannerghatta Road,
Bengaluru-76.
7. Sri. B.V. Papanna,
S/o Late Valappa,
Aged about 46 years,
R/at No.2/11, 1st Cross,
Bilekahalli,
Bannerghatta Road,
Bengaluru-76.
(D.1 to 6- Sri. MBR
D.7- Sri. TKR Advocates)
Date of Institution of the suit 23/04/2011
Nature of the suit Suit for declaration and
injunction
Date of Commencement of 15/04/2014
recording of evidence
Date on which judgment was 16/03/2022
Pronounced
Total Duration Year/s Month/s Day/s
10 10 23
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
3
O.S. No.3064/2011
:JUDGMENT:
This is a suit filed by the plaintiff against the defendants for the relief of declaration and permanent injunction along with cost of the suit.
2. The brief facts are as under :-
That, the plaintiff is the absolute owner of the suit schedule property as described in the schedule. In addition thereto the plaintiff is also seeking decree in the form of specific performance directing the defendant to execute absolute registered sale deed pertains to the land measuring 11 guntas in Sy.No. 91/11 of Bilekahalli village Begur hobli and 4 guntas of land carved out of schedule A property in Sy.No. 91/11 of the Bilekahalli village. Further it is averred that the plaintiff's right, title and interest in respect of suit schedule property is evidenced by a document dt.24.1.1994 and an affidavit came to be executed evidencing receipt of Rs.2,91,500/-
for conveying plaintiff's right, title,interest, ownership and possession in respect of suit schedule property. The said document evidences that the possession of the property is delivered and the plaintiff is entitled to exercise title and ownership in respect of the property as absolute owner thereof, as such it became the obligation of the defendants to execute absolute registered sale deed in favour of the plaintiff. Further. the possession of the suit schedule property has been delivered to the plaintiff, therefore on the basis and strength of the title and possession in respect of the property, the plaintiff is in lawful possession and enjoyment of the suit schedule property as absolute owner. The plaintiff has constructed a residential building on the suit schedule property which was permitted by the defendants in order to improve and develop the property, accordingly on 8.6.1994 the plaintiff took possession and perfected his right, title and interest. The plaintiff has got assessment of the property 4 O.S. No.3064/2011 openly in the presence of the defendants and got the katha in respect of the property. Further, the plaintiff has got the power supply connections transferred in his name.
Further it is averred that the defendants are aware of the plaintiff's continuous uninterrupted title and they also aware of the fact that possession of the plaintiff is adverse and this fact is known to the entire world and plaintiff has inducted several tenants in occupation of different portions of the property and are paying rent, but the defendants made an attempt to interfere and dispossess the plaintiff from the suit schedule property and thereby the plaintiff was compelled to file a suit in O.S.No.8497/2007 for bare inunction, in the said case the court has held that the suit being one for permanent injunction and it is contended that the plaintiff has become owner by adverse possession and therefore the plaintiff has not sought for a decree of declaration. So only on that ground the suit came to be dismissed. The possession of he plaintiff is adverse and this fact is known to the defendants. This being the fact there has been a persistent attempt of interference by the defendants, accordingly the plaintiff sought relief of declaration, perpetual injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment over the schedule property. On these grounds, plaintiff prayed for decreeing the suit.
3. Records reveal that though defendant No.1 to 6 appeared through their counsel, but did not file written statement. The Defendant No.7 appeared through his counsel and filed written statement contending that the suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. The plaintiff is not at all in the possession of suit schedule property and for this reason the plaintiff has not averred in the plaint the basic ingredient of adverse possession. Further contended that there is no averment against which of the defendants, the plaintiff has perfected his title by adverse possession and there is no foundation laid in 5 O.S. No.3064/2011 the plaint to take the plea of adverse possession by the plaintiff. Further though the plaintiff relied on the alleged affidavit and GPA referred in para 3 to trace his possession of the suit schedule property, but the said affidavit and GPA being got up and fabricated one by the plaintiff to knock off the suit schedule property, as such the said documents do not laid any support to prove the plaintiff's possession over the suit schedule property. So when the plaintiff is not in possession of the suit schedule property, then question of improving the suit schedule property does not arise. The averment that the properties have been assessed to the property tax in the name of the plaintiff also does not arise as he is nothing to do with the suit schedule property and paying the property tax by self assessment, does not constitute the proof of possession of the suit schedule property of the plaintiff.
Further contended that the lease deeds referred to in para 4 are bogus one and no tenant has been in possession of he suit schedule property and the possession of the same has been exclusively in possession of defendant No.7. The suit filed by the plaintiff in O.S.No. 8491/2007 was dismissed for non-prosecution as the plaintiff had no evidence to prosecute the said suit. As such the plaintiff is a stranger to the suit schedule property and he knew nothing about the antecedent title of the suit schedule property and he does not know to whom the suit schedule property belongs to and as such he is not entitled to declaration of title by adverse possession. Further defendant No.7 specifically contended that the suit suffers from total cause of action and the question of any attempt to dispossess the plaintiff from the suit schedule property arises only when the possession of the same is with the plaintiff earlier to the filing of the suit. The suit is not properly valued. On these grounds prayed for dismissal of the suit with exemplary costs.
6O.S. No.3064/2011
4. On the basis of the above pleadings, this court has framed the following issues/Re casted Issue:-
1) Whether plaintiff proves that he has perfected title over the schedule 'A' and 'B" properties by way of adverse possession ?
2) Whether the plaintiff proves the alleged interference by the defendants?
3) Whether 7th defendant proves that the plaintiff is a total stranger the suit schedule property and he is not entitled to declaration of title and injunction as alleged in para 5 of the written statement?
4) Whether the plaintiff is entitled for relief claimed in the suit ?
5) What Order or Decree?
Addl.Issue:- 1. Whether 7th defendant proves that the suit is not properly valued and court fee paid is insufficient as alleged in para 7 of the written statement? (treated as preliminary issue)
5. In order to prove his case, the plaintiff examined himself as PW-1 and got marked the documents at Ex.P.1 to 119. The plaintiff also examined a witness as P.W. 2 and got marked document as Ex.P120. Ex.D.1 and D.2 are marked in the cross-examination of P.W. 1. On the other hand 7th defendant examined himself as D.W.1 and got marked documents at Ex.D.3 to D.22.
6. Heard and perused the written arguments along with the material on record.
The counsel for plaintiff relied on decisions reported in AIR 1970 SC 1778(State of WB V/s The Dalhousie Institute Society),(1996)2 KANT.L.J. 336( Alta Baksh V/sMohd.Hussain), AIR 2003 SC 1905 (Bondar Singh Vs.Nihal Singh, (2006) 7 SCC 570(T.Anjanappa V/s Somalingappa), AIR 2007 SC 1753 (Munichikkanna Reddy Vs.Revamma), AIR 2008 SC 346(Annkili V/s Vedanayagam), AIR 2009 SC 103 (Hmaji Wghaji Jat V/s Bhikhabhi Khengarbhai Harijan), AIR 1999 SC 1666(Prataprai N.Kothari V/s John Braganza), (1997) 3 SCC 503 (Walter Louis FranklinV/s George Singh), AIR 1997 Kerala, AIR 1980 Kerala 224(Karthiyayani 7 O.S. No.3064/2011 Amma v/s Govindan), AIR 2019 SC(CIVIL) 2707 (Ravinder Kaur Grewal V Manjit Kaur).
The counsel for defendant relied on the decisions reported in 1996 AIR(SC)910, 2005 AIR(SC)4407, 2020 AIR (SC)4178, 2010(14) SCC 38.
7. My findings on the above issues are as under:-
Issue No.1 : In the negative
Issue No.2 : In the affirmative
Issue No.3 : Partly in the affirmative
Issue No.4 : Partly in the affirmative
Addl.Issue No.1 : In the affirmative
Issue No.5 : As per final order for the following:
:R E A S O N S:
8. Issue No.1 to 3:- I take these issues altogether for my discussion, as the facts overlap and for the sake of convenience.
It is worth to note that admittedly the plaintiff has filed the above suit for the relief of declaration to declare that he is the absolute owner having perfected title over the suit schedule A & B properties by way of adverse possession and also sought the relief of permanent injunction. In this regard the plaintiff has filed an affidavit in lieu of oral evidence by reiterating entire averments of the plaint stating that he became the absolute owner in possession of suit schedule A & B properties by virtue of the document dated 24.01.1994 consisting of power of attorney coupled with interest for consideration and affidavit that came to be executed for consideration of Rs.2,91,500/- and thereby conveyed right title interest and possession of the property in favour of the plaintiff, for these reasons it became obligation of the defendants to execute absolute registered sale deed. Further states that on the basis of documents possession and ownership of the property having been delivered/ transferred on 8.6.1994, the plaintiff has constructed residential house and residing there and 8 O.S. No.3064/2011 paying tax to the authority concerned, as such the defendants are aware of the plaintiff's continuous and uninterrupted title, therefore, the plaintiff has perfected title over the suit schedule property. Further when the defendants made attempt to dispossess him, the plaintiff filed O.S.8497/2007 for the relief of perpetual injunction, but it came to be dismissed, again the defendants tried to take forcible possession of the property. In order to support his oral testimony PW1 got marked documents at Ex.P1 to P119.
9. But during the course of cross examination of PW1 admits that he has filed the present suit based on sale agreement and GPA said to have been executed by Krishnappa and his children. Further states that in order to show possession of the suit property he has produced sale agreement. Further admits that though as per entries in Ex.P1-GPA, suit property shown as vacant site, but now there are houses standing in the said property.
10. In his further cross-examination, when RTC was being confronted with a suggestion that it pertains to Sy.No. 91/11 measuring 11 guntas standing in the name of Krishnappa, he admits accordingly it came to be marked as Ex.D1. Further admits that Ex.P115 to 118 photographs are pertain to the suit property, but states that he has not executed any agreement in favour of the 1 st defendant. In his further cross-examination on page 4 admits that the purchasers have already constructed buildings in their respective sites and though he has shown measurement of schedule A and B properties at 11 guntas and 4 guntas respectively, but he is in possession of 4 guntas only, but denied the suggestion that Ex.P2- receipt is not relating to Sy.No.91/11 and there is overwriting of Sy.No.91/11 in Ex.P16 and Ex.P18 to 26.
9O.S. No.3064/2011
11. So also PW2 who said to have witnessed the transactions pertain to the Sy.No.91/11 of Bilekahalli village has filed an affidavit by supporting the case of the plaintiff. But in his cross-examination admits that he has neither seen the documents nor handed over them so as to prepare his affidavit filed in lieu of oral evidence. Further though PW2 states that plaintiff Muniyappa has got the land measuring 11 guntas from Krishnappa, but he pleads ignorance to the effect that in whose name katha pertains to the house stands and denied the suggestion that he is deposing falsely.
12. In order to substantiate his defense defendant No.7 filed an affidavit in lieu of oral evidence and examined himself as D.W.1 by reproducing entire contentions taken in the written statement stating that, he is the absolute owner of suit schedule property as per the registered sale deed dated 15.03.2007 and enjoying the same by paying tax to the concerned authority, as such the plaintiff is nothing to do with the suit property. Further states that according to the plaint averments, the plaintiff has taken possession of the suit property on 24.1.1994 and assumed all right, title , interest together with possession, but the said averments are denied as false. Further states that the plaintiff has taken dual stand stating that he is the owner of the suit property contending that he has perfected title by adverse possession but there is no whisper of ingredients of adverse possession in the plaint and Lease Deeds referred by the plaintiff are bogus one and no tenant has been in possession of the property. On the other hand the defendant No.7 is in possession of the suit property, as such question of paying tax by the plaintiff does not arise. In order to support his oral testimony D.W.1 got marked documents at Ex.D.1 to D.22.
10O.S. No.3064/2011
13. During the course of cross-examination of D.W. 1 though admits that the property belongs to Muniyappa came to 1 st defendant Krishnappa and he is noway related to the family of plaintiff or Muniyellappa, but he states that he knew about Ex.D3/sale deed executed by Krishnappa and his possession over the suit property. Further when a suggestion was put to the witness that Ex.P2 to P13 are the certificates and bills issued by the BESCOM, he answered as the said documents are false and have been created, but admits that he has not lodged any complaint before the police. In his further cross-examination when a suggestion was put to the witness that in Ex.D6-certificate there is mention about meter No.57/6 and 51/16 for having installed in the suit property, he denied the same, but again he admits that the sale deed dt.15.3.07 relied by them is different from that of property in dispute. Again denied the suggestion that Ex.P15 to 19 and Ex.P119 are related to property possessed by Muniyappa, but admits that the property possessed by the plaintiff belongs to Krishnappa. Further when a suggestion was put to witness that the defendants are not in the possession of the property and made attempt to dispossess the plaintiff from the suit property based on bogus document, he denied as false. In such circumstances this court has to appreciate the oral and documentary evidence available on record and to see that in whose favour preponderance of probabilities lies.
14. The learned counsel for the plaintiff has filed written arguments by reproducing entire pleadings, oral and documentary evidence and relying on decisions referred in para No.8 supra prayed for decreeing the suit. Per contra the learned counsel for the defendant No.7 also filed written arguments and relying on the decisions referred supra in para No.8 prayed for dismissal of the suit. The counsel for defendant No.1 to 6 have neither filed written statement nor challenged the evidence of PW1 and 2 or stepped into the witness box.
11O.S. No.3064/2011 It has been held by the Hon'ble Apex Court in the case of State of W.B,V/s Dolhousie Institute Society referred by the counsel for plaintiff that, Article 64 and 65 of Limitation Act-if evidence shows that grantee was in open, continuous and uninterrupted possession and enjoyment of site or over 60 years then persons in such possession acquires title by adverse possession. Further in Alta Baksh and Bondar Singh and others case, observed that possession of person under invalid deed of transfer namely unregistered sale deed - becomes hostile and adverse to that of real owner when he enters such possession and claims ownership on the basis of that invalid deed-held completion of continuous possession for requisite period of 12 years or more and plaintiff found in hostile continuous possession - person acquires title by adverse possession.
In the light of the decision reported in the case of Ravinder Kaur Grewal V. Manjit Kaur (AIR 2019 SC(CIVIL) 2707 referred by the counsel for plaintiff now it is clear that, according to Article 64,65 and 27 of Limitation Act-suit for declaration of title and for restoration of possession- person perfecting title by virtue of adverse possession can maintain suit. But, in view of pleadings, oral and documentary evidence, as well as written submissions filed by the learned counsel for the plaintiff it is evident that, plaintiff is claiming to be the owner in possession of the suit property based on GPA as well as agreement of sale stating that he has also perfected title over schedule A & B properties by way of adverse possession, which has been seriously disputed by defendant No.7 contending that the plaintiff has neither in possession of the suit property nor acquired title by adverse possession as stated in the plaint, on the other hand defendant No.7 is in possession of the suit schedule property.
15. It is pertinent to note here that on perusal of contents of Ex.P1 and P.64 GPA dated 24.01.1994, reveals that the defendant No.1 Krishnappa executed power of attorney authorizing the plaintiff Muniappa 12 O.S. No.3064/2011 S/o Krishnappa to do some act and inducted the plaintiff in the possession of the suit property. Similarly if we go through contents of Ex.P3 and P.97 agreement of sale dated 24.01.1994 also reveals that Krishnapa S/o Muniyellappa has executed agreement of sale in favour of Plaintiff referred supra in respect of the suit schedule property bearing Sy.No.91/11 measuring 11 guntas situated at Bilekanalli, Bangalore South Taluk agreeing to sell the same for sale consideration of Rs.2,91,500/- along with possession of property in dispute.
16. So a question that arises at this juncture is whether the plaintiff being the GPA holder has acquired any right under Ex.P.1 and Ex.P64-GPA as well as Ex.P3 and P.97-agreement of sale from the owners of the property in dispute or not? In this regard, if we carefully go through the contents of GPA we can find that the defendant No.1 Krishnappa S/o Muniyellappa has authorized the plaintiff/GPA holder to do all the acts on their behalf and also handed over possession of the schedule property for sale consideration of Rs.2,91,500/-. In this regard the learned counsel for plaintiff argued that plaintiff has been inducted in the possession of the schedule property by virtue of said GPA coupled with interest and on agreement of sale, as such his possession cannot be disturbed.
17. It is relevant to point out that, admittedly Ex.P.1 Certified copy of alleged GPA dated 24.01.1994 supported by Ex.P.64 original GPA along with Ex.P.38 Certified copy of affidavit dated. 24.01.1994 are unregistered documents. So based on these documents whether the GPA holder has acquired any right title or interest over the property in dispute or not is to be looked into. It is settled that, transaction of the nature of GPA sales do not convey any title and cannot be held as valid mode of transfer of immovable property. In this regard the Hon'ble Apex Court has held in the case of Suraj Lamp and Industries Pvt., Ltd., (2012) 1 SCC 656) that 13 O.S. No.3064/2011 certain protection granted to such documents prior to the date of judgment and further held that it will not affect the validity of sale agreements or powers of attorney executed in genuine transactions only. So in the case on hand the 1st defendant who said to have executed the aforesaid GPA has specifically denied the execution and genuineness of Ex.P.64 alleged GPA dated 24.01.1994.
18. It is not in dispute that, Ex.P.64 GPA dated. 24.01.1994 is the unregistered document, as such the said document is hit by the provisions of Section 17 and 49 of the Registration Act. This being the fact burden of proof is on the plaintiff to make out his title and he cannot succeed on alleged weakness in title or possession of the defendants. In this connection except self interested testimony of P.W.1 there is no supportive oral or documentary evidence on behalf of the plaintiffs. Though P.W2 has been examined but in his evidence there is no whisper about execution of Ex.P.64 alleged GPA dated 24.01.1994 and its genuineness. As such evidence of P.W.1 and 2 on this aspect cannot be accepted.
19. With regard to plea of adverse possession is concern, as held in the case of Anna Kilin and Hemaji Waghaji Jat cases by the Hon'ble Apex Court- the person who claims adverse possession should show a) on what date he came into possession b) what was the nature of his possession c) whether the factum of possession known to the other party
d) how long his possession has continued and e) his possession was open and undisturbed.
20. In this connection, in para 5, 6 and 8 of the plaint we can find that except stray sentence there is no specific pleading on this aspect. So far as in respect of date of inducting the plaintiff in possession of the schedule property and its nature it is evident from the perusal of Ex.P.97 agreement of sale that plaintiff came in to the possession of schedule 14 O.S. No.3064/2011 property on 24/01/1994 as agreement holder and continued till date without interruption.
21. With regard to possession of the plaintiff over the suit schedule property is concern, it is another contention of the plaintiff that he has been inducted over the suit schedule property by virtue of Ex.P.64 GPA with affidavit and Ex.P.97 agreement of sale dated 24.01.1994. In order to support his oral testimony P.W.1 has relied on Ex.P 2 to Ex.P.29, Ex.P.39 to 63, Ex.P 65 to 96 and Ex.P. 108 to 119 namely., Electricity bills, tax paid receipts, ration card, voter ID, self assessment declaration, agreement of sale and lease agreements. Per contra the learned counsel for defendant No.7 relying on a decision (2010) 14 SCC 38 urged that, the plaintiff who has not come to the court with clean hands is not entitled for the said relief.
22. As discussed supra, in the cross-examination of D.W.1 he admits that the property now possessed by the plaintiff belongs to Krishnappa and also admits that the sale deed relied by him at Ex.D.3 dated 15.03.2007 is no way related to the suit schedule property, as such the remaining documents referred supra by D.W.1 are not helpful to support the defense of defendant No.7. Further, in the case on hand the defendant No.7 has neither set up counter claim nor claimed any relief over the suit schedule property or sought possession of the property in dispute. This being the fact the aforesaid documents relied by the plaintiff can be considered to show character of possession of the plaintiff over the suit schedule property to the extent of 4 guntas as admitted by P.W. 1 and supported by amended plaint from date of aforesaid agreement of sale deed dated 24.01.1994, subject to compliance of provisions of Karnataka Stamp Act. With regard to alleged obstruction is concern it is the case of the plaintiff that when the obstruction was made by the other side to dispossess him, he filed O.S. No.8497/2007 which came to be 15 O.S. No.3064/2011 dismissed for non prosecution and thereafter he has come up with present suit based on cause of action dated 18/04/2011 and 19/04/2011 when again the defendants attempted to interfere with and to take forcible possession of the plaintiff in dispute.
23. It is to be noticed that, as rightly urged by the other side the relief of the plaintiff pertains to ownership over the schedule property cannot be believed for the following reasons:-
The leaned counsel for defendant No.7 argued that if the plaintiff intend to seek the relief of title by adverse possession then he must recognize title of the original owner as such relief of the plaintiff for declaration and injunction based on unregistered documents cannot be accepted. In order to support his oral testimony D.W.1 also relied on Ex.P D.1 to 22 namely record of rights, certified copy of sale deed dated 15.03.2007, genealogical tree, copy of FIR, tax paid receipts, encumbrance certificates, mutation copies, electricity bills and sketch / test report issued by the BESCOM.
24. It is relevant to point out that in view of the ratio laid down by the Hon'ble Supreme Court in a decision AIR 2019 SC (Civil) 2707 referred supra by the counsel for plaintiff, though the plaintiff can file a suit for declaration claiming as he has perfected title by adverse possession as if the defendant was claiming the said relief prior to the date of said judgment, but if we carefully peruse the plaint averments we can find that plaintiff has pleaded two reliefs that is in para No 2 and 3 of the plaint states that he has filed the suit seeking the relief of declaration to declare that he is the absolute owner of the suit schedule property based on GPA dated 24/01/1994. Further in para 4 to 6 of the plaint pleads that he has also perfected title over the schedule property by way of adverse possession.
16O.S. No.3064/2011
25. In this regard in the case of Mohan Lal dead by L.Rs referred by counsel for defendant No.7 the Hon'ble Supreme Court has observed that Article 64 an 65 of Limitation Act R/w Sec.53A of T.P.Act- agreement of sale, party in possession of the suit and pursuant to said agreement of sale, held since party's claim is founded on Sec.53A-as such plea of title by adverse possession not available. Further in the case of Narasamma V/s A.Krishnappa reported in (2020) 15 SCC 218 held that order VII Rule 1, plea of title and adverse possession cannot be simultaneously taken and from same date.
26. It is important to note that, in para 3 of the plaint again it is pleaded that, in addition to the relief of declaration he has also sought the relief of specific performance of contract based on Ex.P.97 agreement of sale dated 24/01/1994. With respect to this plea also plaint does not disclose the specific plea of ready and willingness to perform his part of contract along with balance amount within a stipulated period as required under Section 16(c) of the Specific Relief Act. This being the fact it is settled that, the plaintiff claiming to be in possession of suit schedule property under an unregistered agreement of sale and contemplated execution of registered sale deed also cannot claim his possession to be adverse against the vendor.
27. Another question that arises before this court at this juncture is, admittedly Ex.P.64 original GPA dated 24/01/1994 and Ex.P.97 original agreement of sale dated 24/01/1994 relied by the plaintiff are not only unregistered documents but also insufficiently stamped, but during the course of trial no objection was raised by the other side before the predecessor in office. In this regard our Hon'ble High Court in a decision reported in AIR 2015 KAR 175 (Smt. Savithramma R.C. case) has observed and distinguished the difference between impounding the document and its admission in evidence without objection. Further 17 O.S. No.3064/2011 observed that according to Section 33 of Karnataka Stamp Act, 1957 if, on examination of document found to be not duly stamped then obligation is cast on the court to impound the same irrespective of fact whether objection to its marking in evidence is raised or not. Further in para 7 of the judgment observed that, impounding the document should not be confused to admission of document without objection regarding admissibility or on such objection being taken after collecting the duty and penalty. In this regard the plaintiff has not neither paid deficit duty and penalty nor got the said documents registered till date.
28. A plain reading of Section 33 of the Karnataka Stamp Act 1957 makes it clear that every person having by law or consent of parties authority to receive evidence, and every person in- charge of the public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
29. In the case on hand the plaintiff has claimed the relief of permanent injunction against the defendants stating that he was being inducted into the possession of the schedule property based on specific performance of contract and states about alleged obstruction. In this regard, the proviso to amended Section 49 of Registration Act states that if the plaintiff wants to take benefit of section 53A of the T.P Act then it should be registered. For these reasons the aforesaid documents GPA and agreement of sale dated 24/01/1994 are liable to be impounded with a direction to send the said documents thereof to the authority concern for recovery of deficit duty and penalty in accordance with law.
18O.S. No.3064/2011
30. Therefore having regard to the facts and circumstances of the case, I am of the opinion that though plaintiff is not able to establish the fact that he has perfected title over the schedule 'A" and 'B' properties by way of adverse possession, but he is able to show that, he has been inducted into the possession of the schedule properties by virtue of unregistered GPA coupled with interest and annexed affidavit along with agreement of sale dated 24/01/1994 as observed supra to the extent of schedule 'B' property measuring 4 guntas as admitted by P.W. 1. For the aforesaid reasons arguments advanced by the learned counsel for plaintiff and arguments/written arguments filed by the counsel for defendant No.7 partly holds good. Hence, I answer Issue No.1 in the negative, Issue No.2 is the affirmative and Issue No.3 partly in the affirmative.
31. Addl. Issue No.1:- It is worth to note that, based on the plea of deficit court fee paid by the plaintiff, the defendant No.7 would contend that, the valuation made and court fee paid by the plaintiff is insufficient, accordingly addl. Issue No.1 was being framed. On perusal of the entire material on record along with orders on preliminary issue dated 15/02/2019 reveals that, in view of the ratio laid down by the full bench of our Hon'ble High Court in the case of Venkatesh.R. Desai the said issue was held as to be tried along with other issues on merits.
32. It may be noted that, initially the plaintiff filed the suit for declaration to declare that he is the absolute owner of the suit schedule properties and also sought the relief of injunction. But during the pendency of the suit the plaintiff got amended the plaint by inserting the relief of declaration as perfected title over the schedule properties by way of adverse possession in the place of declaration as absolute owner of the schedule properties. It is evident that, at the time of filing of suit the plaintiff has furnished valuation slip by making valuation under Section 24(b) and Section 26(c) of the KCF&SV Act based on sale consideration 19 O.S. No.3064/2011 of Rs.2,91,500/- pertains to the relief of declaration and Rs.1,000/- for the relief of injunction, accordingly paid court fee of Rs.9,852/-, which has been disputed by defendant No.7.
33. A plain reading of Section 24 of the KCF&SV Act reads as under:-
"Suits for declaration- in a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25 of the Act, (b) where the prayer is for a declaration and consequential injunction and the relief is sought with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on Rs.1,000/- which ever is higher.
34. The suit document i.e. Ex.P.97 agreement of sale dated 24/01/1994 reveals that it was entered for a total sale consideration of Rs.2,91,500/- with possession of the property in dispute. This being the fact if we read the aforesaid provisions along with schedule-I of the Act, then the plaintiff ought to have paid court fee of Rs.17,125/- up to Rs.2,50,000/- + 6½ % on exceeding Rs.2,50,000/- i.e. on Rs.41,500/- as required under Section 24(b) of KCF&SV Act. So how the plaintiff has made valuation and paid court fee of Rs.9,852/- has not been explained in the plaint. Therefore, having regard to the facts and circumstances of the case, it can be said that, valuation made and court fee paid by the plaintiff is not proper. Hence, plaintiff is liable to pay deficit court fee thereon in accordance with law. Hence, I answer Addl. Issue No.1 in the affirmative.
35. Issue No.4:- Having regard to the facts and circumstances of the case and in view of my discussion made supra while dealing with Issue No.1 to 3 suit of the plaintiff deserves to be partly decreed with cost. Hence, I answer Issue No.4 partly in the affirmative.
20O.S. No.3064/2011
36. Issue No.5:- For the foregoing reasons, I proceed to pass the following :
ORDER The suit of the plaintiff is partly decreed with cost.
The defendants are hereby permanently restrained from interfering with plaintiff's possession over the suit schedule 'B' property bearing Sy.No. 91/11 measuring 0.4 guntas out of 0.11 guntas situated in Bilekahalli village, Begur Hobli, Bengaluru South Taluk, without due process of law subject to compliance of provisions of Karnataka Stamp Act by the plaintiff as observed in the body of the judgment.
The relief of declaration of title by way of adverse possession stands rejected.
Draw decree accordingly.
(Typed to my dictation by the Stenographer directly on computer, corrected, signed by me and then pronounced in the open Court this the16th day of March 2022.) ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : K. Muniyappa
PW.2 : Santhojappa
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 : B.V. Papanna
DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P.1 Certified copy of GPA dated 24/01/1994
Ex.P.2 Certified copy of the certificate issued by BESCOM
Ex.P.3 to 13 Certified copy of the electricity bills
Ex.P.14 Certified copy of the letter issued by BESCOM
Ex.P.15 Certified copy of the Test certificate issued by BESCOM
Ex.P.16 Certified copy of the tax paid receipt
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O.S. No.3064/2011
Ex.P.17 Certified copy of the self assessment declaration
Ex.P.18 Certified copy of the tax paid receipt
Ex.P.19 Certified copy of the self assessment declaration
Ex.P.20 Certified copy of the tax paid receipt
Ex.P.21 Certified copy of the self assessment declaration
Ex.P.22 Certified copy of the tax paid receipt
Ex.P.23 Certified copy of the self assessment declaration
Ex.P.24 Certified copy of the tax paid receipt
Ex.P.25 Certified copy of the self assessment declaration
Ex.P.26 Certified copy of the tax paid receipt
Ex.P.27 Certified copy of the ration card
Ex.P.28 Certified copy of the voter I.D. card
Ex.P.29 Certified copy of the letter issued by BESCOM
Ex.P.30 Certified copy of the agreement of sale dated
24/01/1994
Ex.P.31 to 36 Certified copy of four photographs and two negatives Ex.P.37 Certified copy of the bill in respect of photographs Ex.P.38 Certified copy of the affidavit dated 24/01/1994 Ex.P.39 Certified copy of the agreement of lease dated 18/08/2010 Ex.P.40 Certified copy of the agreement of lease dated 10/09/2009 Ex.P.41 Certified copy of the Rent agreement dated 10/07/2007 Ex.P.42 Certified copy of the agreement of lease dated 08/05/2009Certified copy of the agreement of lease dated 18/08/2010 Ex.P.43 Certified copy of the agreement of lease dated 07/09/2006 Ex.P.44 Certified copy of the agreement of lease dated 10/02/2011 Ex.P.45 to 63 19 electricity bills Ex.P.64 GPA dated 24/01/1994 Ex.P.65 Certificate issued by BESCOM Ex.P.66 to 80 15 electricity bills Ex.P.81 Tax paid receipt Ex.P.82 Self assessment declaration Ex.P.83 Tax paid receipt Ex.P.84 Self assessment declaration Ex.P.85 Tax paid receipt Ex.P.86 Self assessment declaration Ex.P.87 Tax paid receipt Ex.P.88 Self assessment declaration Ex.P.89 Tax paid receipt Ex.P.90 Self assessment declaration Ex.P.91 Ration card 22 O.S. No.3064/2011 Ex.P.92 Voter I.D card Ex.P.93&94 Letter issued by BESCOM Ex.P.95&96 Two test certificates issued by BESCOM Ex.P.97 Agreement of sale dated 24/01/1994 Ex.P.98 Four photographs and two negatives to 103 Ex.P.104 Receipt in respect of photographs Ex.P.105 GPA dated 04/08/1995 Ex.P.106 Affidavit dated 04/08/1995 Ex.P.107 Application submitted to BWSSB Ex.P.108 Two tax paid receipts & 109 Ex.P.110 4 water bill paid receipts to 113 Ex.P.114 Approved plan Ex.P.115 4 photographs along with CD and positive photographs to 118 Ex.P.119 C.D DOCUMENTS EXHIBITED FOR THE DEFENDANTS :-
Ex.D.1 Record of rights/Phani
Ex.D.2 Certificate dated 19/12/2007 issued by BESCOM
Ex.D.3 Certified copy of the sale deed dated 15/03/2007
Ex.D.4 Genealogical tree
Ex.D.5 Tax paid receipt
Ex.D.6 Tax assessment list
Ex.D.7 FIR In Cr. No.532/2007
Ex.D.8&9 No objection letter (2)
Ex.D.10 5 Old phanis
Ex.D.11 2 New phanis
Ex.D.12 6 Encumbrance Certificates
Ex.D.13 Sketch
Ex.D.14&15 2 mutation copies
Ex.D.16 Sketch issued by BESCOM
Ex.D.17 Test report issued by BESCOM
Ex.D.18 6 Electricity bills
Ex.D.19 5 RTC
Ex.D.20 Copy of mutation register
Ex.D.21 5 tax paid receipts
Ex.D.22 Encumbrance Certificate
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
23
O.S. No.3064/2011
Operative portion of the judgment
pronounced in open court vide separate
judgment:-
ORDER
The suit of the plaintiff is partly decreed with cost.
The defendants are hereby permanently restrained from interfering with plaintiff's possession over the suit schedule 'B' property bearing Sy.No. 91/11 measuring 0.4 guntas out of 0.11 guntas situated in Bilekahalli village, Begur Hobli, Bengaluru South Taluk, without due process of law subject to compliance of provisions of Karnataka Stamp Act by the plaintiff as observed in the body of the judgment.
The relief of declaration of title by way of adverse possession stands rejected.
Draw decree accordingly.
[ C.D. KAROSHI ] V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU