Karnataka High Court
Sri M J Dileep Kumar vs Sri M V Sathyanarayana on 15 April, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO 257 OF 2013
BETWEEN
1 . SRI. M.J DILEEP KUMAR
S/O M.A. JAYAPRAKASH,
PARTNER, DATACON TECHNOLOGIES,
AGED ABOUT 43 YEARS,
NO.79, 1ST FLOOR,
INDUSTRIAL TOWN,
MAGADI MAIN ROAD,
BANGALORE- 560 044
2 . SMT. KAVITHA
W/O M.J DILEEP KUMAR,
AGED ABOUT 37 YEARS,
PARTNER, DATACON TECHNOLOGIES,
NO. 79, 1ST FLOOR,
INDUSTRIAL TOWN,
MAGADI MAIN ROAD,
BANGALORE-560 044
...APPELLANTS
(BY SRI. VIVEK SUBBAREDDY, SENIOR COUNSEL FOR
SRI. RAMESH K.R )
2
AND
SRI. M.V SATHYANARAYANA
AGED ABOUT 68 YEARS,
S/O SRI M.R. VENKATARAMA SASTRY,
R/A NO.68, SATHYANARAYANA LAYOUT,
3RD STAGE, 4TH BLOCK,
WEST OF CHORD ROAD,
BASAVESHWARANAGAR,
BANGALORE- 560 079
...RESPONDENT
(BY SRI. G.L. VISHWANATH, SENIOR COUNSEL FOR
SRI. RAJU V.C &
SMT. DHRITI VISHWANATH, ADVOCATES)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 02.02.2013 PASSED IN
O.S.NO.1584/2010 ON THE FILE OF 42nd-ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FILED FOR
DECLARATION, MANDATORY AND PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K, J.,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE RAJESH RAI K
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CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K) This Regular First Appeal is directed against the judgment and decree passed in O.S.No.1584/2010 dated 02.02.2013 by the Court of the 42nd Addl. City Civil and Sessions Judge at Bangalore City (CCH-43) [hereinafter referred to as the 'learned Trial Judge'], whereby, the learned Trial Judge decreed the suit filed by the respondent herein.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. The appellants are the defendants and respondent is the plaintiff.
3. The abridged facts of the case are as follows:
The plaintiff filed a suit against the defendants seeking relief of declaration claiming that he is the absolute owner of suit property and also to declare the sale deed and rectification deed standing in the name of defendants as not binding on him and not affecting his right. He also sought for mandatory injunction to demolish the structure and put him in possession of the suit property. It is the case of the plaintiff that, originally, one Late Maregowda was the owner of Sy.No.49/4 of Srigandadakaval, Yeshawanthpura Hobli, Bangalore North Taluk, measuring 3 acres 8 guntas, i.e., the larger extent of suit property, formed a layout and sold sites No.9 and 10, measuring 80 x 60 feet in favour of 4 Sri. L. Prabhakar Reddy through his GPA Holder Sri. Kunnaiah under a registered sale deed dated 10.10.1983. Out of these two sites Sri. L.Prabhakar Reddy sold site No.10 in favour of Smt. Vani and delivered the possession. In turn, the said Smt. Vani sold site No.10 to the plaintiff vide registered sale deed dated 29.01.2000.
Thus, the plaintiff became the absolute owner of the vacant site bearing No.10, Khaneshumari No.356/49/4, situated in Sunkadakatte Village, Srigandadakaval, Yeshwanthpura Hobli, Bangalore North Taluk, Bangalore, measuring East to West: 80 feet and North to South: 60 feet (hereinafter after referred to as 'suit property') and that he was in absolute possession and enjoyment of the suit property. Against this backdrop, on 05.03.2010 the defendants attempted to interfere in the possession of suit property and to damage it's the compound wall. However, the plaintiff resisted the attempt and filed a suit for permanent injunction to restrain the defendants and their henchmen from interfering in the peaceful possession and enjoyment of the suit property by the plaintiff.
4. In response to the service of suit summons, the defendants No.1 and 2 appeared before the court through their counsel and submitted their written statement by denying the claim of the plaintiff.
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5. It is contended by the defendants in their written statement that the suit property has been purchased by the defendants from their vendor under a registered sale deed dated 04.12.2009 and rectification deed dated 26.02.2010. Following of coming into possession, they obtained khatha and paid taxes. According to the defendants, legal representatives of the deceased Sri. Maregowda had executed General Power of Attorney (hereinafter referred to as 'the GPA') in favour of one Sri. K.R.Ranganath on 10.03.1994 in respect of the property measuring 160 x 60 feet in Sy.No.49/4, out of which, the suit property has been formed. The land in Sy.No.49/4 was the ancestral property of Sri. Nanjundappa and others and the plaintiff had no right, title or interest in the suit property. There neither surfaced an occasion nor necessity for the defendants to unlawfully erect construction on the suit property.
6. Subsequently, on filing the written statement by the defendants, they have unauthorizedly and illegally constructed compound wall around the suit property and additionally erected a shed and obtained illegal electricity connection. Hence, left with no alternative, the plaintiff sought to amend the suit relief by filing an amended plaint and prayed to declare the plaintiff as the absolute owner of the suit property and also to declare sale deed dated 04.12.2009 and the rectification deed dated 26.02.2010 registered 6 in the name of defendants as not binding on the plaintiff; thereby, not affecting his right with respect to the suit property. The plaintiff also prayed for decree of mandatory injunction to direct the defendants to demolish the construction erected on the suit property.
7. On the basis of above pleadings by both the parties, the Trial Court framed the following issues and additional issues as under:-
"ISSUES
1. Whether the plaintiff proves that he was in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff proves that the registered sale deed dated 04.12.2009 and rectification deed dated 26.02.2010 is not binding upon him?
3. Whether the plaintiff proves that the defendants have made illegal construction on the suit property as alleged in para 7(f) of the plaint?7
4. Whether the plaintiff is entitled for the relief of declaration?
5. Whether the plaintiff is entitled for the relief of possession?
6. Whether the plaintiff is entitled for the relief of mandatory injunction?"
8. In order to prove case of the plaintiff, the plaintiff examined himself as PW.1 and marked 19 documents as Exs.P1 to P19. The defendant No.1 examined himself as DW.1 and additionally examined 2 witnesses as DWs.2 and 3 and marked 18 documents as Exs.D1 to D18.
9. On assessment of oral and documentary evidence, the Trial Court answered issue No.1 as not surviving for consideration, issues No.2 and 3 in the negative and answered additional issues No.1 to 6 in the affirmative and issue No.4 as per final order and decreed the suit against the defendants as under:
"ORDER The suit of the plaintiff is decreed against the defendants with costs as follows:-
The plaintiff is declared as the absolute owner of the suit schedule property.
Further it is ordered and directed to the defendants to deliver the possession of the suit schedule property to the plaintiff within a period of 2 months.
Further, the defendants are ordered and directed to remove the compound wall 8 and structure put up on the suit schedule property at their costs and to hand over the possession.
Further, it is ordered and decreed that if the defendants failed to remove the structure put up on the suit schedule property and to deliver the possession, then the plaintiff is entitle for removal of structure and to take possession of the suit schedule property from the defendants by executing the decree as per law.
Draw a decree accordingly."
Challenging the said judgment and decree the defendants are before this Court.
10. We have heard the learned senior counsel Sri. Vivek Subbareddy for the appellants and the learned senior counsel Sri. G.L.Vishwanath for the respondent.
11. The learned senior counsel appearing for the appellants/defendants vehemently contended that the Trial Court grossly erred while passing the impugned judgment without appreciating the material facts of the matter that the legal heirs of deceased Maregowda was the original owner of the larger extent of the suit property bearing Sy.No.356/49/4 of Sunkadakatte village. They executed a GPA dated 10.03.1994 in favour of Sri. K.R.Ranganath for a extent of 160X60 feet in Sy.No.49/4 of Srigandadakaval as per Ex.D3. Based on the said GPA, the said Sri. K.R.Ranganath executed an absolute sale deed dated 04.12.2009 9 and rectification deed dated 26.02.2010 in favour of the defendants and ever since then the defendants were in peaceful possession and enjoyment of the suit property. By drawing our attention to Ex.P1, the learned senior counsel contended that in Ex.P1-sale deed there is no mention regarding the date of execution of GPA; to establish the said GPA was executed by the original owner Late Maregowda to Sri. Kunnaiah. In such circumstances, the onus is on the plaintiff to prove that the GPA holder-Sri. Kunnaiah was legally authorized to execute the sale deed in favour of Sri. L. Prabhakar Reddy as per Ex.P1. Nevertheless, the measurement of the site mentioned in Ex.P1 is east to west 80 feet and north to south 120 feet. However, the subsequent sale deed i.e., Ex.P2 executed by Sri. Prabhakar Reddy to Smt. Vani i.e., the vendor of the plaintiff dated 16.03.1990 depicts the measurement east to west 60 feet and north to south 80 feet. Further, the boundaries of Exs.P1 and P2 also stand contrary to each other. The learned senior counsel by further clarifying the said position submitted that the sale deed- Ex.P3 standing in the plaintiff's name was executed by Smt. Vani again depicts a different measurement of the suit property i.e., east to west 80 feet and north to south 60 feet. In such circumstances, it cannot be construed that the plaintiff is the absolute owner of the suit property as there is destruction and ambiguity in the flow of title. He further contended that in a suit for declaration the fundamental jurisprudence has to be followed by conveying the title 10 and the boundaries of the property. The Trial Court without inspecting the boundaries of the suit property as enumerated in Exs.P1 to P3, allowed the prayer of the plaintiff by granting a decree of declaration. Additionally, he contended that the Trial Court failed to consider the aspect that it is the specific case of the defendants that Sri. K.R.Ranganath-GPA holder of the legal heirs of Late Maregowda executed the sale deed in favour of the defendants to an extent of 160 X 60 feet in Sy.No.49/4 out of which the suit property has been carved. The defendants are in possession and enjoyment of the suit property and the construction of compound and shed had been made much earlier to filing of the suit. Even in the cross-examination of PW.1, he has categorically admitted that he has not seen Sri. Kunnaiah. Further, the Trial Court also failed to examine the evidence of DWs.1 to 3 in right perspective though they have categorically deposed about the execution of sale deed and GPA by the legal heirs of Late Maregowda-original owner of the defendants' vendor. In such circumstances, the Trial Court ought not to have granted the declaration of title and possession in favour of the plaintiff. Accordingly, he prays to allow the appeal.
12. Per Contra, the learned senior counsel for the plaintiff contended that the Trial Court, on meticulously examining the comprehensive evidence and documents placed before it, passed a well-reasoned judgment which does not call for any interference. 11 According to the learned senior counsel, it is an undisputed fact that the suit property was carved out of Sy.No.49/4 Sunkadakatte village, measuring 3 acre 8 guntas, originally owned by one Late Maregowda. Even otherwise, the said aspect is clearly forthcoming in Exs.P9 to P13, the RTC extracts from the years 1977-78 to 1982-
83. It is also not in dispute that the said Late Maregowda sold the said property after converting the said land into different dimension sites. Out of those sites, site No.9 and 10 were sold by the GPA holder of Late Maregowda i.e., Sri. Kunnaiah in favour of one Sri. L. Prabhakara Reddy vide sale deed dated 10.10.1983 as per Ex.P1. Subsequently, the said Sri. L. Prabhakara Reddy, by retaining site No.9 sold site No.10 alone to the plaintiff's vendor Smt. Vani vide sale deed dated 16.03.1993. As such, there was a small change in the boundary in Exs.P1 and P2. Later, the said Smt. Vani in turn sold the suit property to the plaintiff under Ex.P3 dated 29.01.2000. According to the senior counsel there is no change in the boundaries in Exs.P2 and P3. Further, the tax paid receipt dated 18.04.2009 and 30.07.2009 clearly reflects the plaintiff's name. Moreover, the encumbrance certificates i.e., Ex.P15 and 16 also reflects the sale transactions of Exs.P1 to P3. He also contended that the schedule of Ex.D1 the title deed relied by defendants clearly depicts that the eastern portion of the said property is remaining land of site No.10 and west is by road, north is by site No.9 and south is by site No.11. However, in the rectification deed 26.02.2010 Ex.D2, 12 strangely depicts that the eastern boundary is site No.7 as shown in Ex.P3. Hence, it is clear that the defendants executed the rectification deed by endeavouring to locate the land purportedly purchased by them. Additionally, he contended that there is no document to establish that legal heirs of Late Maregowda retained any land in Sy.No.49/4 for subsequent sale. Even otherwise, considering that the legal heirs of Late Maregowda retained any land in Sy.No.49/4, there is nothing to indicate that site No.10 was part of the said remaining land. By emphasising on the evidence of DWs.1 to 3 the senior counsel contended that DW.1 has categorically admitted in his cross-examination that there are no revenue documents in respect of suit property and that there in no mention of site No.10 in Ex.D3. Further, there are discrepancies in the description of boundary between Exs.D3 and D1. Further, the sale transaction in Ex.P1 and P2 are not challenged by the legal heirs of Late Maregowda for a period of 11 years. If the sale transaction under Ex.P1 and P2 were sham transactions then the legal heirs of original owner Late Maregowda would in all probability have challenged the sale deed immediately upon its execution. Such being the position, it is clear that the plaintiff is the absolute owner in possession of the suit property and the defendants in order to usurp the suit property fabricated Exs.D1 to D3. These aspects were categorically appreciated in length by the Trial Court and the learned Trial judge has rightly passed the judgment and decree. In 13 such circumstances, the interference does not call for by this Court in the impugned judgment and decree.
13. Having heard the learned counsel for the parties and on careful perusal of the documents placed before us, the points that arise for our consideration are:
1. Whether the plaintiff is the absolute owner of the suit property by virtue of Ex.P3?
2. Whether the defendants dispossessed the plaintiff from the suit property?
3. Whether the Trial Court is justified in granting the relief of declaration and possession in respect of plaintiff?
4. What order?
14. Point No.1: The plaintiff, in order to prove the ownership of the suit property relied on Ex.P3 the sale deed executed by his vendor Smt. Vani dated 29.01.2000. The plaintiff additionally placed Exs.P6 and P7-tax paid receipts of the year 2009. Further, he has produced Exs.P15 and P16-encumbrance certificates of the suit property from 01.04.1983 to 31.03.2004. These two documents reflect the sale transactions dated 16.03.1990 by one Sri. L. Prabhakara Reddy to one Smt. Vani and sale deed dated 29.01.2000 from the said Smt. Vani to the plaintiff respectively. Nevertheless, the plaintiff also produced Ex.P1 i.e., the original sale deed dated 10.10.1983 executed by one Sri. Kunnaiah- GPA holder of the original owner Late Maregowda and his son 14 Sri. M. Gangadhara in favour of Sri. L. Prabhakara Reddy. As could be gathered from these records that the land bearing Sy.No.49/4 of Srigandadakaval, Yeshwanthpura Hobli, Bengaluru North Taluk measuring 3 acres 8 guntas was originally owned by Late Maregowda. It is further undisputed that, this larger extent of land was converted to sites of different dimensions. Thereafter, the GPA holder of said Late Maregowda i.e., one Sri. Kunnaiah conveyed site No.9 and 10 to one Sri. L. Prabhakara Reddy. It is also not in dispute that out of those two sites Sri. L. Prabhakara Reddy retained site No.9 and sold site No.10 i.e., the suit property in favour of the plaintiff's vendor. It is the specific case of the plaintiff that the defendants interfered with their peaceful possession of the suit property on 05.03.2010, he has filed the suit in O.S.No.1584/2010 against the defendants for relief of injunction. When the defendants claimed to be in possession, enjoyment and ownership of the suit property, the plaint was amended to seek the additional relief of declaration of title and possession of the suit property after demolishing the construction.
15. The claim of the defendants in this case is that they are the absolute owners of the suit property by virtue of the absolute sale deed dated 04.12.2009 as per Ex.D1 and the rectification deed dated 26.02.2010 as per Ex.D2. The defendants claim that their vendors are none other than the GPA holder of the legal heirs of the 15 original owner Late Maregowda. To validate the said claim, the defendants produced Ex.D3-original GPA dated 10.03.1994 along with the affidavit of one Sri. Anjanappa-son of the Late Maregowda. Further, the defendants also relied on the encumbrance certificate dated 31.03.2011 which reflects the sale transaction between one Sri. K.R.Ranganath-GPA holder of Late Maregowda and the defendants. They also relied on Ex.D7 i.e., the tax paid receipt for the year 2011. According to the defendants they are in possession of the suit property ever since. To establish the same, they produced the photographs of the shed situated on the suit property as per Exs.D8 to D18 along with negatives of the photographs and CD. As such, according to the defendants they are the absolute owners in possession of the suit property.
16. Since both the plaintiff and defendants are claiming right over the same site bearing No.10 i.e., the suit property by virtue of their title deeds it is imperative to mention the schedule of the suit property as described in the plaint:
"All that piece and parcel of the vacant site bearing No.10, Khanesumari No.356/49/4 situated at Sunkadakatte village, Srigandadakaval, Yeshwantpur Hobli, Bangalore North Taluk measuring East to West 80 ft., North to South 60 ft. in all 4800 sq. ft. bounded on:
East by Site No.7 West by Road North by Site No.9 South by Site No.11"16
17. On perusal of Exs.P2 and P3 i.e., the sale deeds of the plaintiff and his vendor, the suit property mentioned in those sale deeds are one and the same. It is vehemently contented by the learned senior counsel for the appellant that there is change in the schedule i.e., the measurement and boundary when compared with Exs.P2 and P3. Hence, according to the learned senior counsel the execution of Exs.P1 to P3 in itself surfaces doubt in its authenticity. Further, it is also contended by the learned senior counsel that that plaintiff had failed to produce the GPA mentioned in Ex.P1 purportedly executed by the original owner Late Maregowda and his son to Sri. Kunnaiah.
18. We have assiduously perused the schedule enumerated in Exs.P1 to P3. Albeit the learned senior counsel is right in pointing out that as per Ex.P1 the measurement of the property and the boundaries of the property does not corroborate with Exs.P2 and P3, however, on careful perusal of Ex.P1 executed in respect of sites No.9 and 10 and the subsequent sale deed-Ex.P2 was executed only in respect of site No.10 i.e., the suit property. In such circumstances it can be construed that, the schedule and the measurement mentioned in Exs.P2 and P3 is one and the same and bound to be different from ExP1. Nevertheless, minor discrepancy if any, in mentioning the measurement cannot by itself be a ground to hold that the flow of title is not established.
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19. Further, the contention raised by the senior counsel regarding non-production of GPA by the plaintiff, as discussed supra it is undisputed that the land measuring 3 acre 8 guntas was converted into site of different dimensions by its original owner Late Maregowda and sale deed Ex.P1 was executed in the year 1983 and the subsequent sale deed was executed in the year 1990. Neither the original owner Late Maregowda nor his legal heirs ever questioned the sale transactions of the year 1983 and 1990 or Ex.P3-sale deed executed in favour of the plaintiff. Nevertheless, they also failed to challenge the GPA executed by the original owner to Sri. Kunnaiah. In such circumstances, it cannot be remotely construed that Sri. Kunnaiah executed the sale deed-Ex.P1 without any authority and fraudulently. Further, it also cannot be believed that the legal heirs had no such knowledge about the execution of GPA or sale transactions.
20. Delving into the claim of ownership by the defendants as per Exs.D1 and D2, on careful perusal of these two documents, it could be gathered that Ex.D1 was executed in the year 2009 by one Sri. K.R.Ranganath-the GPA holder of the legal heirs of the original owner Late Maregowda. Albeit the defendants produced original GPA-Ex.D3, however, the same is unregistered and notarized on 10.03.1999 i.e., after a lapse of 5 years. Further, as per the schedule of the said GPA, the measurement of property is shown as 18 160X60 ft. reserved for performing Pooja of Muneshwara deity. However, on perusal of Ex.D1, the schedule in the said sale deed depicts that the property bearing site No.10 is situated on the vacant western portion of the same site bearing Assessment Register No.49/4 measuring 80X60 ft. Further, the boundaries mention that on east the remaining portion of site 10, on west road, north by site No.9 and south by site No.11. As such it could be compounded that there existed site No.10 in the said layout. Further, a rectification deed was executed by the defendants as per Ex.D2 on 26.02.2010 i.e., 10 days prior to institution of the suit by the plaintiff against the defendants. On careful perusal of the said rectification deed, the schedule and measurement mentioned thereon is similar to Ex.P3. It is pertinent to note that before executing Exs.D1 and D2 the defendants failed to obtain encumbrance certificate of the suit property. It is evident from Exs.P15 and P16, the sale transaction of Exs.P1 and P2 were forthcoming in the earlier encumbrance certificates. In such circumstances, there arises doubt in the execution of Exs.D1 and D2 and Ex.D3-GPA. On perusal of the evidence of DW.1, he has categorically admitted in his cross-examination that one Late Maregowda had formed sites in Sy.No.49/4 and that he was unaware if Late Maregowda had retained any sites in Sy.No.49/4. Further, it is also admitted by DW.1 that there is no revenue document existing regarding the property as mentioned in Exs.D1 19 to D3. It is also admitted by DW.1 that there is difference in description of boundaries in Exs.D1 and D2. On perusal of evidence of DW.2-GPA holder i.e., the defendants' vendor, has categorically admitted in his cross-examination that he is unaware of the boundaries of sites in property bearing Sy.No.49/4 and interestingly he was unable to state what Ex.D3 was i.e., the purported GPA executed in favour of him by the original owners. He also admitted that he has no document to establish that after sale of sites, Late Maregowda retained land measuring 160 X 60 as claimed by the defendants. DW.3-grandson of the original owner Late Maregowda also admitted in his cross-examination that he had no knowledge of GPA being executed by his father in favour of the defendants' vendor. Further, he cannot say in respect of which property Ex.D1 was executed. He also admitted that he learnt site No.10 has been sold in favour of plaintiff in the year 2001. On careful perusal of the evidence of DWs.1 to 3, there arises doubt in the mind of this Court regarding the authenticity of Ex.D3 by the legal heirs of Late Maregowda in favour of the defendants' vendor. It could also be gathered that to defeat plaintiffs' rights over the suit property, Exs.D1 and D2 were executed by one Sri. K.R.Ranganath. The execution of sale deed in favour of the plaintiff was well within the knowledge of legal heirs of Late Maregowda i.e., DW.3 ever since 2001 and he never challenged the legality for nearly 29 years i.e., from 1983. The Trial Court in its reasoning regarding authenticity of 20 the Ex.P1 and non-production of the GPA executed in favour of Sri. Kunnaiah observed as under:
"As per Section 68 of the Indian Evidence Act, 1872, it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. The provisions of Section 68 reads as follows:-
68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied)"
Looking to the above provisions, it is clear that neither the executant nor their Power of Attorney Holder have challenged the legality of Ex.P1 for a period of 29 years. They have not disputed or denied execution of Ex.P1. Execution of Ex.P1 has been disputed by the defendants, who are also said to be the purchasers of Site No.10. Therefore, as per the proviso to Section 68 of the Indian Evidence Act, it is not necessary to call an attesting witness in proof of execution of Ex.P1. In Ex.P1, in the schedule it is specifically mentioned that Site No.9 and 10 have been sold to Sri.L.Prabhakar Reddy and possession has been delivered to him."21
21. For the foregoing discussion and by considering the due findings of the Trial Court we hold that, the contentions raised by the learned senior counsel regarding the flow in destruction of title of suit property in favour of plaintiff cannot be accepted. Per contra, the defendants failed to prove their title by placing reliable documents; as such we answer point No.1 in affirmative.
22. Point No.2: It is the specific contention of the plaintiff that based on Exs.D1 and D2 the defendants encroached upon the suit property, thereafter instituted the suit and illegally put up compound wall and erected structure, thereafter got possession of the suit property. According to the defendants they erected compound and structure prior to the suit institution. Hence it is the case of both parties that the defendants are in possession of the suit property. However, it could be gathered from records that the suit was instituted on 08.03.2010 and Ex.D3 rectification deed was executed 10 days prior to institution of the suit. Further, the photographs-Exs.D8 to 17 also enumerates the date as 20.06.2010. Admittedly, the defendants have neither obtained licence nor sanction from the BBMP to undertake construction. In such circumstances, there is substantial credibility in the case of the plaintiff that the defendants illegally took possession and erected a structure on the suit property. Against this backdrop, we hold point No.2 in affirmative.
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23. Point No.3: For the foregoing reasons, we hold that the learned Trial Judge was justified in granting the relief of declaration and possession by directing the defendants to get rid of the compound and structure erected on the suit property by bearing its expenditure and to hand over the possession of the suit property to the plaintiff. In case of failure, the plaintiff is entitled to remove the structure and to take possession of the suit property by executing the decree as per law. Accordingly, we answer point No.3 in affirmative.
24. Point No.4: Accordingly, we proceed to pass the following:
ORDER The Regular First Appeal is dismissed.
No order as to costs.
SD/-
(ANU SIVARAMAN) JUDGE SD/-
(RAJESH RAI K) JUDGE HKV