Bangalore District Court
Sri. S.K. Lakshminarayana Setty vs Mr. S. Ramachandra Reddy on 27 January, 2023
KABC010267802015
THE COURT OF XL ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, (CCH-41), BENGALURU CITY.
Dated 27th day of January, 2023.
PRESENT
Sri. Somashekhar C. Badami,
B.Com., LL.B.
XL Additional City Civil & Sessions Judge,
Bengaluru City.
ORIGINAL SUIT NO. 9587/2015
PLAINTIFFS : 1. Sri. S.K. Lakshminarayana Setty
Aged about 62 years,
S/o. Late. Sunku Krishnaiah Setty,
R/at: Brahmins Street,
Chintamani - 563 125.
2. Sri. S.K. Srinivasa Gupta
Aged about 54 years,
S/o. Late S. Krishnaiah Setty,
R/at: Brahmins Street,
Chintamani - 563 125.
(By Sri. B.R. Vishwanath, Advocate.)
AND:
2 O.S.No.9587/2015
DEFENDANTS : 1. Mr. S. Ramachandra Reddy
Aged about 40 years,
S/o. Srinivasa Reddy,
R/at: No.38, Annappa Reddy compound,
Sarakki Gate, J.P. Nagar Post,
Bengaluru - 560 078.
2. Smt. Yashodamma
aged about 50 years,
W/o. Venkateshappa,
R/at: No.5, 7th Cross,
Shankambari Nagar,
I Phase, J.P. Nagar,
Bengaluru - 560 078.
( EX-PARTE )
i) Date of Institution of the suit. 24-11-2015
ii) Nature of the suit. Declaration & Injunction
iii) Date of the commencement 23-11-2016
of recording of evidence.
iv) Date on which the judgment
was pronounced. 27-01-2023
v) Total Duration Year/s Month/s Day/s
07 02 03
(SOMASHEKHAR C. BADAMI),
XL Addl. City Civil & Sessions judge,
Bengaluru.
*****
3 O.S.No.9587/2015
JUDGMENT
The plaintiffs have filed the present suit for declaration that, they are the absolute owners of the suit schedule property by way of inheritance to the rights of his father by declaring that the sale deed dated 11.06.2014 registered as document No. JPND-2812/2014-15, Book-I, recorded in CD. No. JPND274, in the office of the Sub-Registrar, J.P. Nagar, Bengaluru is not binding on them. It is also prayed for the decree of Permanent Injunction against the defendants from interfering into their peaceful possession and enjoyment of the suit schedule property. It is also prayed to pass an order of Mandatory Injunction directing the defendant No.2 to remove the permanent structure construction in the suit schedule property with costs.
2. The brief facts narrated by the plaintiffs' in the plaint are that; the suit schedule property originally belonging to their father by name Sunku Krishnaiah Setty by virtue of sale deed dated 22.02.1961 registered under document No. 4579/60-61, Book-I, Volume No. 277 at pages No. 230 to 232 in the office of the Sub-Registrar, Bengaluru South 4 O.S.No.9587/2015 Taluk, Bengaluru. Their father was died on 29.01.1986 leaving behind the plaintiffs and other children to succeed to his estate. (1) Smt. P.G. Sulochanamma, (2) SK. Munirathnaiah, (3) S.K. Muniswamy Setty, (4) S.K. Venkatesh Babu, (5) S.K. Balaji Gupta and (6) & (7) plaintiffs of the present suit are the legal heirs of said Sunku Krishanaiah Setty. Thereafter, death of their father in the family, on understanding of all the children of their father agreed to execute release agreement and thereupon the rights of their brother and sisters over the suit schedule property is relinquished in their favour in respect of the suit schedule property. In pursuance of said release agreement entered in between all the legal heirs of Late. Sunku Krishnaiah Setty, they became absolute owners in possession of the suit schedule property. The registration of the said release deed could not be completed and accordingly, the khata in respect of the suit schedule property could not registered in the name of the plaintiffs. They have no adverse interest against the other legal heirs of Sunku Krishnaiah Setty and plaintiff No.1 being the elder of their family authorize to pursue the cause of the litigation.
5 O.S.No.9587/2015
3. It is further averments of the plaint that; though their father Sunku Krishnaiah Setty was died on 29.01.1986, the defendant No.1 by name S. Ramachandra Reddy, fraudulently representing as his Power of Attorney holder in respect of the suit schedule property and based on such G.P.A. sold the same in favour of the defendant No.2 by executing sale deed dated 11.06.2014 registered under document No. JPN-1-02812/2014-15, Book No. I, CD. No. JPND274 in the office of Sub-Registrar, J.P. Nagar, Bengaluru. The said sale transaction entered after lapse of 28 years from the date of death of their father itself shows that the same is fraudulent, fabricated and accordingly, the said sale deed void and not binding upon them. Muchless, the said sale deed has no legal sanction and same is non-est.
4. Further, it is averred in the plaint that; the defendants No.1 and 2 colluding each other with intent to cheat and defraud them fabricated the documents in a fraudulent manner in respect of the suit schedule property and obtained the building license for construction of a residential building in it without any accrual of title to them. 6 O.S.No.9587/2015 On the basis of such fraudulent documents, the defendants by using their high handedness trying to dispossess the defendant by trespassing into the suit schedule property and accordingly, to protect their peaceful possession the plaintiffs approached the police and then filed the suit by plaintiff No.1 for bare Permanent Injunction. Subsequent to the litigation of the suit by way of amendment on an allegation that, the defendant No.2 forcibly and illegally entered into the suit schedule property and made construction of a permanent structure over the same by dispossessing them. Inspite of they lodged complaint before the police, they did not take any action by informing that the matter is civil in nature and approached to the competent civil Court. It is alleged that, the defendants have no manner of right, title or interest over the suit schedule property belonging to them and inspite of which they have made an illegal construction over the same by dispossessing them subsequent to the suit. Hence, the present suit of the plaintiffs for declaration of their title over the suit schedule property and declaration to the sale deed created by the defendants soon after the death of their father in a fraudulent 7 O.S.No.9587/2015 manner and for Mandatory Injunction directing the defendant No.2 to remove the permanent structure made over the suit schedule property and for costs.
5. As could be seen from the records, in spite of service of summons the defendants No.1 and 2 are not at all present and contest the suit of the plaintiffs. Accordingly, my predecessor-in-office was placed them as ex-parte.
6. In order to establish the case of the plaintiffs, the plaintiff No.1 has examined as P.W.1 and got marked the documents at Ex.P.1 to P.13 and closed their side of evidence. I heard Sri. B.R. Vishwanath, the learned counsel for the plaintiffs and perused the entire oral and documentary evidence on record and apply my mind to the settled principles of law.
7. Based upon the facts and circumstances on record, the following points that are arises for my determination:-
1. Whether plaintiffs prove that their father Sunku Krishnaiah Setty is the absolute owner of suit schedule property by virtue of registered Sale Deed dated 22.02.1961 ? 8 O.S.No.9587/2015
2. Whether plaintiffs further prove that they became absolute owner of suit property by inheritance and release deed as averred in the plaint ?
3. Whether plaintiffs further prove that the sale deed dated 11.06.2014 executed by defendant No.1 in favour of defendant No.2 as a G.P.A. of deceased Sunku Krishnaiah Setty fraudulently after lapse of 28 years of his death and the same is non-est and not binding upon them ?
4. Whether plaintiffs further prove that they are in actual possession and enjoyment of the suit schedule property as on the date of the suit and dispossess them by the defendant No.1 subsequent to the suit by constructing permanent structure as alleged ?
5. Whether plaintiffs are entitled for declaratory reliefs as sought for ?
6. Whether plaintiffs are entitled for Mandatory Injunction against the defendant No.2 as sought for ?9 O.S.No.9587/2015
7. Whether plaintiffs are entitled for Permanent Injunction as sought for?
8. What Order or Decree?
8. My findings on the above points are as under:
POINTS NO. 1 : In the affirmative
POINTS NO. 2 : In the negative
POINTS NO. 3 : In the affirmative
POINTS NO. 4 : In the negative
POINTS NO. 5 : Affirmative in part
POINTS NO. 6 : In the negative
POINTS NO. 7 : In the negative
POINTS NO. 8 : As per final order,
for the following:
REASONS
9. POINT NO. 1 :- The suit property bearing 42 in
Sy.No. 58/2 located at 10th Main, Shakambari Nagar, Sarakki village, 1st Phase, J.P. Nagar, Uttarahalli Hobli, Bengaluru South Taluk measuring East to West 40 feet and North to South 30 feet totally measuring 1200 sq. ft. within the boundaries as described in the schedule of the plaint. P.W.1/S.K. Lakshminarayana Setty being the plaintiff No.1 reiterated the plaint pleadings in his evidence. According to him, one Sunku 10 O.S.No.9587/2015 Krishnaiah Setty is his father, who died on 29.01.1986. His father became owner of the said suit schedule property by virtue of sale deed dated 22.02.1961 registered under document No. 4579/1960-61 in Book-1, Volume No. 277 at pages No. 230 to 232 in the office of Sub-Registrar, Bengaluru South Taluk, Bengaluru. In support of this testimony of P.W.1 plaintiffs have produced the certified copy of sale deed. The Ex.P.1 is the certified copy of the said registered Sale Deed. Looking to the same, it is recited that Sunku Krishnaiah Setty was purchased sites No. 37 & 42 in Sy.No. 58/2 measuring East to West 80 feet and North to South 40 feet located within the boundary as under:
East the road left over by the vendor, West the road, North sites No. 36 & 43 and South sites No. 38 & 41.
Thus, totally to the extent of 3200 sq. ft. appears to be purchased by said Sunku Krishnaiah Setty by virtue of Ex.P.1 and became owner in possession of the same. Neither the pleadings nor the oral testimony of P.W.1 and Ex.P.1 is challenged at any time by anybody as per the records. 11 O.S.No.9587/2015 Looking to the description made in Ex.P.1, the suit schedule property, appears as part and parcel of the properties purchased by the father of plaintiffs by virtue of said sale deed. The Ex.P.5 is the encumbrance certificate for the period from 01.04.1960 to 31.05.1989 discloses the only the sale transaction as per Ex.P.1. The Ex.P.6 is the encumbrance certificate for the period from 01.06.1989 till 31.03.2004. In view of these facts and circumstances, revealing from the unchallenged evidence of the plaintiffs, I am of the opinion that, the father of the plaintiffs by name Sunku Krishnaiah Setty S/o. Sunku Muniswamy Setty became owner in possession of suit schedule property by virtue of Ex.P.1. Hence, the point No.1 is held in the affirmative.
10. POINT NO. 2:- On one set of facts of pleadings of the plaint and testimony of P.W.1, it is urged that the plaintiffs became absolute owner by inheritance to the estate of his father and on the other set of facts by way of amendment of the pleadings and testimony of P.W.1 to that effect discloses that the plaintiffs became joint owners by virtue of release deed. The very testimony of P.W.1 coupled with pleadings of 12 O.S.No.9587/2015 the plaintiffs goes to show that Sunku Krishnaiah Setty was died on 29.01.1986 leaving behind him by name (1) Plaintiff No.1 - S.K. Lakshiminaraya Setty (2) Smt. P.G. Sulochanamma (3) S.K. Munirathnaiah Setty (4) S.K. Muniswamy Setty (5) S.K. Venkatesh Babu (6) S.K. Balaji Gupta and (7) S.K. Srinivasa Gupta. Thus, according to P.W.1 his father Sunku Krishnaiah Setty was died leaving behind six sons and only one daughter.
As per law of inheritance all these six sons and daughter are entitled to succeed to the property leaving behind by Late. Sunku Krishnaiah Setty in view of his death on 29.01.1986 as evident by Ex.P.4/ death certificate. As against the law of inheritance the plaintiffs are claiming the absolute title over the suit property. However, the plaintiffs alone are not possible to became absolute owners by way of inheritance excluding others.
11. The plaintiffs on the other hand claimed their absolute ownership by pleading that all the legal heirs of Late. Sunku Krishnaiah Setty out of family understanding release their respective rights in their favour. The P.W.1 has deposed the execution of release deed and relinquished the rights of his 13 O.S.No.9587/2015 brothers and sister and stated that the registered release deed is produce before the Hon'ble High Court of Karnataka in RFA. No. 1897/2013 and certified copy of the same is placed for the scrutiny of this Court. The Ex.P.11 is the certified copy of said release deed as relied upon by the plaintiffs to claim their absolute ownership over the suit schedule property. Looking to the same, it clearly appears that, the same is not a registered release deed. No doubt, it is executed on 04.07.2008 by all the legal heirs and thereupon released the rights of other legal heirs of Late. Sunku Krishnaiah Setty in favour of the plaintiffs, but, as per Section 17 of Registration Act the said Ex.P.11 is compulsory registrable document and in the absence of registration it cannot be looked into. Muchless, the parties to the said document are not before this Court and they are not made as a necessary or proper party to the present declaratory suit. Accordingly, I am of the considered opinion that by virtue of such unregistered release deed, no absolute right is accrued to the plaintiffs. As such, the plaintiffs failed to prove that they became absolute owner of the suit schedule property either by inheritance or on the basis of Ex.P.11 as the 14 O.S.No.9587/2015 case made out by them. Hence, the point No.2 is held in the negative.
12. POINT No. 3:- The P.W.1 consistent to the plaint pleadings, it is deposed that the defendant No.1 fraudulently representing i.e. P.A. holder of Sunku Krishnaiah Setty and sold the property belonging to him in favour of the defendant No.2 by executing a registered Sale Deed dated 11.06.2014 in the office of Sub-Registrar, J.P. Nagar, Bengaluru. It is also deposed that after lapse of 28 years from the date of death of Sunku Krishnaiah Setty the said sale deed has been created. In this context, it is relevant to seen the Ex.P.2. It is the certified copy of said sale deed dated 11.06.2014 said to have been executed by defendant No.1 in favour of defendant No.2 on the representation as a G.P.A. of Sunku Krishnaiah Setty by this document, the defendants admitted that said Sunku Krishnaiah Setty is the original owner of the suit schedule property. The Ex.P.7 and P.8 are being encumbrance certificate evident about such sale transaction. The unchallenged oral testimony of P.W.1 coupled with pleadings and death certificate of Sunku Krishnaiah Setty as per Ex.P.4 15 O.S.No.9587/2015 clearly established that Sunku Krishnaiah Setty was died on 29.01.1986. For a while, the G.P.A. presumed to be executed by Sunku Krishnaiah Setty in favour of defendant No.1 then such G.P.A. die with the executant. As per settled principles of law such G.P.A. seized to be inoperative on the date of death of Sunku Krishnaiah Setty i.e. on 29.01.1986 itself. Accordingly, the defendant No.1 has no power to execute any registered sale deed in respect of the suit property belonging to deceased person Sunku Krishnaiah Setty by virtue of G.P.A. if any. More so, no G.P.A. is come on record to appreciate the genuinity of the authority of defendant No.1 to execute the sale deed and registered the same. It is surprise for me that the Sub-Register is also not at all endorsed anywhere in the said document that he scrutinise the G.P.A. In such of these circumstances, I am of the considered opinion that the sale deed as per Ex.P.2 executed by defendant No.1 in favour of defendant No.2 without any title over the suit property or valid authority. Therefore, I am of the view that based on such sale deed no title over the suit schedule property belonging to Sunku Krishnaiah Setty was possible to transferred to the 16 O.S.No.9587/2015 defendant No.2. As such, sale deed is void ab-initio and certainly the same is non-est as rightly argued by the learned counsel for the plaintiffs. Such sale transaction is not at all binding either to the plaintiffs or any legal heirs of the deceased Sunku Krishnaiah Setty and their title over the suit schedule property is not at all extinguished. Hence, the point No.3 is held in the affirmative.
13. POINT No. 4:- It is the specific case of the plaintiffs that, they are in actual possession and enjoyment of the suit schedule property as on the date of the suit and subsequent to the suit they dispossessed the defendant No.1 who constructed a permanent structure over the suit schedule property. The plaintiffs not at all produce any revenue records like RTC, mutation or B.B.M.P. records, if the suit property presumed to be comes within limits of B.B.M.P. As I have already stated the plaintiffs failed to prove their absolute title over the suit schedule property. In addition, to these plaintiffs themselves by amendment of the plaint sought relief of Mandatory Injunction directing the defendant No.2 to remove the permanent structure constructed in the suit schedule 17 O.S.No.9587/2015 property. Particularly in para No.6 of the plaint it is pleaded by themselves that: "it is learnt that the defendants are fraudulently and misrepresentation and fabricated documents trying to obtained the building license for construction the residential building over the suit property." By seeking amended relief of mandatory injunction itself sufficient to hold that the plaintiffs actual possession over the suit property is doubtful. No doubt the unchallenged testimony of P.W.1 discloses that, the plaintiffs are in actual possession of the suit schedule property as on the date of suit. Except the oral testimony no other document is produced to that effect. The Ex.P.3 is an application filed by P.W.1 before revenue officer for mutating khata in his name. The same was filed on 05.03.2015. The present suit filed on 24.11.2015. If really, the plaintiffs are in actual possession the said application ought to have been considered by the revenue authorities. But no piece of record to show about action taken on such an application is placed for the scrutiny of this Court. Muchless in what way the plaintiffs are enjoying the suit property by keeping its actual possession as on the date of the suit is also not at all 18 O.S.No.9587/2015 properly pleaded and explained by P.W.1. Apart from this in respect of the suit property there must be revenue records either RTC, mutation or khata. But, no such document is placed by the plaintiffs in support of the testimony of P.W.1. Therefore, the bare testimony of P.W.1 without any supportive documentary evidence cannot be acceptable to believe him that the plaintiffs are in actual possession as on the date of suit.
14. The pleading coupled with testimony of P.W.1 discloses that, they have dispossessed subsequent to the filing of the present suit. If it is true, the date of their dispossess, when the defendant No.2 constructed permanent structure over the suit site which sought to be removed or material to plead in the plaint and prove the same. Looking to all these facts pleaded on record by the plaintiffs coupled with absence of revenue document like RTC, mutation, khata etc. clearly goes to show that the plaintiffs are not at all in actual possession as on the date of the suit and the cloud to the subsequent event as pleaded by them. Accordingly, the 19 O.S.No.9587/2015 plaintiffs failed to prove the same. Hence, the point No.4 is held in the negative.
15. POINT No. 5:- The plaintiffs sought the relief that they are the absolute owner of the suit schedule property in pursuance of sale deed dated 22.02.1961 and having succeeded to the same after the death of his father on 29.01.1986. Of course, the plaintiffs successful in establishing that their father Sunku Krishnaiah Setty became owner in possession of the suit schedule property and remaining property by virtue of Ex.P.1/registered Sale Deed dated 22.02.1961. However, they failed to prove that they became absolute owner after the death of their father in view of the other legal heirs of Late. Sunku Krishnaiah Setty are admittedly alive. The plaintiffs also failed to establish that they became absolute owner by virtue of Ex.P.11 as per law. In such of these circumstances, I am of the considered opinion that the plaintiffs are not entitled for specific declaration of their absolute ownership over the suit schedule property. However, their father Sunku Krishnaiah Setty is certainly owner of the same and is legal 20 O.S.No.9587/2015 heirs and entitled to succeed to the same. Hence, the point No.5 is held in the affirmative in part.
16. POINT No. 6:- While discussing point No.4, I have clearly observed that plaintiffs failed to prove their actual possession and they are also failed to prove when and in what manner the defendant No.2 dispossess them. The specific pleadings of date of dispossess and manner of construction made over the suit schedule property is very much needful to grant relief of Mandatory Injunction. In the absence of such pleadings and proof, I am of the considered opinion that the plaintiffs are not entitled for the relief of Mandatory Injunction against the defendant No.2 as sought for. Hence, the point No.6 is held in the negative.
17. POINT No.7:- The plaintiffs prayed for Permanent Injunction as against the defendants. First of all they have pleaded that they have already dispossessed and a permanent structure is put up by defendant No.2. Such being their pleadings it is crystal clear that the plaintiffs are not at all in possession of the suit schedule property and 21 O.S.No.9587/2015 they failed to establish the same by placing any current RTC, mutation or any piece of records. As per settled law, when there is no proof of actual possession of the plaintiffs over the suit property as on the date of the suit, no injunction is to be granted. The plaintiffs must seek relief of possession on the basis of their dispossession. However, the present suit is not for possession. Therefore, I am of the considered opinion that the plaintiffs are not entitled for the relief of Permanent Injunction as sought for. Accordingly, the point No.7 is held in the negative.
18. POINT NO. 8:- In the result of my discussion and findings on all the points made supra, to meet out the justice, it is just and proper to pass the following:
ORDER The suit of the plaintiffs is decreed in part with costs.
It is declared that the father of the plaintiffs viz., Late. Sunku Krishnaiah Setty is the owner of the suit schedule property. Consequently, it is declared that the sale deed 22 O.S.No.9587/2015 dated 11.06.2014 under document No. JPND- 2812/2014-15, under Book-I, in CD. No. JPND274 in the office of the Sub-Registrar, J.P. Nagar, Bengaluru is void ab-initio and not binding on the plaintiffs.
The suit of the plaintiffs in respect of the other reliefs as sought for by the plaintiffs are dismissed without costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, and the transcript print is corrected and then pronounced by me in the open court on this the 27th day of January 2023.) (SOMASHEKHAR C. BADAMI), XL Addl. City Civil & Sessions Judge, Bengaluru.
****** ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 - S.K. Lakshminarayana Setty DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFFS:
Ex.P.1 Certified copy of sale deed dated 22.02.1961
Ex.P.2 Certified copy of sale deed dated 11.06.2014
Ex.P.3 Copy of letter for katha
23 O.S.No.9587/2015
Ex.P.4 Certified copy of death certificate of
Krishnaiah Setty
Ex.P.5 to P.8 Encumbrance Certificates
Ex.P.9 Certified copy of order sheet in C.C. No.
2818/2016
Ex.P.10 Certified copy of Vakalath filed by defendant
No.2
Ex.P.11 Certified copy of registered release deed
Ex.P.12 & Certified copy of judgment and decree in
P.13 O.S.No. 8836/1996
WITNESSES EXAMINED & DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
-NIL-
(SOMASHEKHAR C. BADAMI), XL Addl. City Civil & Sessions Judge, Bengaluru.
****** Digitally signed by
SOMASHEKHARA
SOMASHEKHARA CHANNABASAPPA
CHANNABASAPPA BADAMI
BADAMI
Date: 2023.01.27
13:22:00 +0530
24 O.S.No.9587/2015
27.01.2023
P-BRV,
D1, 2 - Ex-parte,
For judgment,
Judgment pronounced in the open
Court (Vide separate Judgment) :
ORDER
The suit of the plaintiffs is decreed
in part with costs.
25 O.S.No.9587/2015
It is declared that the father of the
plaintiffs viz., Late. Sunku Krishnaiah Setty is the owner of the suit schedule property. Consequently, it is declared that the sale deed dated 11.06.2014 under document No. JPND-2812/2014-15, under Book-I, in CD. No. JPND274 in the office of the Sub-Registrar, J.P. Nagar, Bengaluru is void ab-initio and not binding on the plaintiffs.
The suit of the plaintiffs in respect of the other reliefs as sought for by the plaintiffs are dismissed without costs.
Draw decree accordingly.
(SOMASHEKHAR C. BADAMI), XL Addl. City Civil & Sessions judge, Bengaluru.26 O.S.No.9587/2015