Bangalore District Court
Mr. Steve Macqueven Roberts vs Sri. Patrick Peter on 18 November, 2020
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH75)
Dated this 18th Day of November 2020
PRESENT:
Sri. MOHAMMED MUJEER ULLA C.G. (B.A. LL.B.,)
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 25150/2009
PLAINTIFF : MR. STEVE MACQUEVEN ROBERTS
S/o. J.F.Roberts
Aged about 24 years
R/at: No.218/A
7th Cross, St.Antony School Road
Ramamurthy Nagar
Bengaluru - 560016.
V/s
DEFENDANTS: 1 SRI. PATRICK PETER
S/o. Sri.Joseph Peter
Aged about 60 years
2 SMT. SALET MARY
W/o. Patrick Peter
Aged about 53 years
BOTH ARE R/AT:
No.4, 2nd Block
Dasappa Laout
Ramamurthy Nagar
Bengaluru - 560016.
2
OS.25150/2009
Date of Institution of the suit 23.01.2009
Nature of the Suit (Suit on pronote, suit for
DECLARATION &
declaration and possession, suit for injunction,
INJUNCTION
etc.)
Date of the commencement of recording of the
14.03.2012
Evidence.
Date of pronouncement of Judgment 18.11.2020
Year/s Month/ Day/s
Total duration
s
11 09 26
JUDGMENT
Plaintiff has filed the instant suit against defendants to declare that, the sale deed dated:25.01.2006 executed by 1 st defendant in favor of 2nd defendant in respect of suit property is null and void, not binding on him and also for cancellation of the said sale deed, permanent injunction restraining defendants, their men, agents or anybody through or under them from alienating the suit property, recovery of possession of the suit property in case, if the Court comes to the conclusion 3 OS.25150/2009 that, plaintiff is not in possession of the suit property and for cost.
FACTS OF THE CASE:
2. 2nd defendant is the maternal aunt of plaintiff. 1 St defendant is the husband of 2nd defendant. Plaintiff's father was addicted to bad vises. Therefore he was not taking care of his wife and children. Hence in the 1988 plaintiff's mother went to Kuwait to earn livelihood. At that time, plaintiff and his brother were minor. They were staying in India along with their maternal aunts namely Lalitha Das & Irudya. In the year 1997 defendants voluntarily came forward to take care of plaintiff and his brother. Plaintiff's mother reposing faith on defendants given them the responsibility of maintaining plaintiff and his brother. Accordingly plaintiff and his brother had been under the care and custody of defendants. Plaintiff's mother was sending money to defendants to provide food, cloth and education to plaintiff and his brother. Plaintiff's mother was intending to purchase 2 sites for the benefit of plaintiff and his 4 OS.25150/2009 brother. She had given the responsibility of purchasing sites to defendants. 1St defendant negotiated with the owner of property bearing No.236/2 situate in Horamavu village, finalized the sale talks and purchased the said property in the name of plaintiff's mother, as her attorney holder . In the same way 1 st defendant negotiated with the owner of suit property, finalized the sale talks, took the power of attorney from Kantharaju - the erstwhile owner of suit property and on the strength of the said power of attorney, he executed sale deed dated:05.02.2003 in favor of plaintiff. For purchase of above properties, plaintiff's mother sent/gave money to 1st defendant. At the time of purchase of suit property under the registered sale deed dated:05.02.2003, plaintiff was under the care and custody of defendants. Some days after purchase of suit property, defendants went to Australia. When the plaintiff's mother requested the defendants to give original documents of the suit property, they told that, they will hand over the property documents after they returned from Australia. In the month of 5 OS.25150/2009 April 2008, plaintiff's mother came to India. On 31.12.2008 she obtained Encumbrance certificate of the suit property. On perusal of Encumbrance certificate, plaintiff's mother came to know that, 1st defendant as an attorney holder of plaintiff has executed sale deed dated:25.01.2006 in respect of suit property in favor of his wife, the 2nd defendant. Plaintiff contends that, he has not executed any power of attorney in favor of 1st defendant.
Defendants colluding with each other to knock off the suit property have played fraud on him, created power of attorney dated:21.04.2005 and on the basis of the said power of attorney, the sale deed dated:25.01.2006 was created. Plaintiff contends that, the above said sale deed is not valid and binding on him. Therefore it has to be cancelled and declared as null and void and not binding on him. Plaintiff contends that, on the strength of the above sale deed, defendants are making attempts to alienate the suit property. Therefore she has to be restrained from alienating the said property. On these and other grounds stated in the plaint, the plaintiff sought the relief of declaration 6 OS.25150/2009 and injunction. After conclusion of trial, when the case was posted for arguments, plaintiff amended the plaint and sought the relief of possession by contending that, if the Court comes to the conclusion that, plaintiff is not in possession of the suit property, the defendants are to be directed to vacate and handover the vacant possession of the suit property to him.
3. Defendants resisted the suit by filing written statement. They admit their relationship with plaintiff. They contend that, when the plaintiff's mother went to Kuwait for job, plaintiff and his brother were under the care and custody of their maternal aunts Mrs.Lalitha Das & Irudaya. Defendants denied that in the year 1997, they voluntarily came forward to take the custody of the plaintiff and his brother, plaintiff's mother reposing faith in them handed over the custody of her children to them and since then they were in custody of defendants. Defendants admit that, 1st defendant as attorney holder of plaintiff's mother purchased the property situate in 7 OS.25150/2009 Horamavu Agara village in her name and as attorney holder of Mr.Kantharaju executed the said sale deed dated:05.02.2003 in respect of suit property in favor of plaintiff. Defendants contend that, some days after execution of sale deed dated:05.02.2003 in favor of plaintiff, the plaintiffs mother started blaming them stating that, the suit property situate in a remote place, the neighboring site owners encroached a portion of suit property, the BDA has planned to acquire the suit property for the formation of Arkavathi Layout, etc. Plaintiff's mother started blaming defendants and attributing them stating that, they betrayed her. Plaintiff's mother called the relatives of the defendants and made false allegation against them. Therefore defendants decided to purchase the said property. Plaintiff and his mother agreed to sell the said property for Rs.1,70,000/. As per the instructions of the plaintiff's mother, defendants deposited a sum of Rs.1,70,000/ in the bank account of Mrs.Irudaya Mary, the maternal aunt of plaintiff. To evidence the sale transaction, plaintiff sworn to an affidavit 8 OS.25150/2009 dated:21.04.2005 and executed the power of attorney dated:21.04.2005 authorizing the 1st defendant to deal with the suit property. On the strength of the power of attorney, 1 st defendant executed sale deed dated:25.01.2006 in respect of suit property in favor of his wife - the 2 nd defendant. Defendants contend that, plaintiff and his mother by receiving the sale consideration of Rs.1,70,000/ executed power of attorney and affidavit. Therefore the sale deed dated:25.01.2006 executed by 1st defendant in favor of 2nd defendant is valid and binding on plaintiff. On the basis of the said sale deed, katha of the suit property was effected in the name of 2nd defendant and she is paying tax to the BBMP. On the date of execution of the sale deed, plaintiff has handed over the vacant possession of the suit property to defendants. Defendants denied that, they created power of attorney dated:21.04.2005 and sale deed dated:25.01.2006 to knock off the suit property and thereby they cheated plaintiff. They contend that, the above documents were made in accordance with law and after payment of the entire 9 OS.25150/2009 sale consideration. Therefore they are the legal documents of conveyance. Defendants contend that, plaintiff who has executed power of attorney dated:21.04.2005 in favor of 1 st defendant authorizing him to sell the suit property has filed the instant suit for unlawful gain and to harass and humiliate them. They contend that, there is no cause of action for the suit. On these and other grounds stated in the written statement, defendants pray to dismiss the suit.
4. On the basis of the afore said pleadings, on 08.08.2011 the then presiding officer has formulated the Issues. Noticing mistakes in the said issues, on 10.02.2020 the following issues were formulated:
1. Whether the plaintiff proves that, defendants by playing fraud got the sale deed of suit property in the name of 2nd defendant?
2. Whether the defendants prove that, plaintiff executed GPA dated:21.04.2005 in favor of 10 OS.25150/2009 1st defendant interalia authorizing him to sell the suit property?
3. Whether the defendants prove that, they purchase the suit property from plaintiff for a sum of Rs.1,70,000/?
4. Whether the plaintiff proves that, the sale deed dated:25.01.2006 executed by 1st defendant in favor of 2nd defendant is not valid and binding on him?
5. Whether the plaintiff is entitled for the relief of declaration and injunction?
6. Whether the plaintiff is entitled for the relief of Possession?
7. What order or decree?
ADDITIONAL ISSUES
1. Whether the defendants prove that, the plaintiff has not valued the suit properly and the Court fee paid is insufficient?
11
OS.25150/2009
5. Plaintiff examined himself as PW1 and examined his mother & aunt namely Zereldern Mercy Joseph & Irudya Mary as PW2 & 3 and produced documents marked at Ex.P.1 to Ex.P.7.
6. Defendants examined 1st defendant as DW1 and produced documents marked at Ex.D.1 to Ex.D.22.
7. Heard the arguments on both side and perused record. Counsel on both side have filed notes of arguments.
8. My findings on the above issues are as under:
ISSUE NO.1: In the Affirmative.
ISSUE NO.2: In the Negative.
ISSUE NO.3: In the Negative.
ISSUE NO.4: In the Affirmative.
ISSUE NO.5: In the Affirmative.
ISSUE NO.6: In the Affirmative.
ADDL. ISSUE NO.1: In the Negative. ISSUE NO.7: As per the final order for the following:12
OS.25150/2009 REASONS
9. ISSUE NO.1 TO 4: These issues are in respect of validity of sale deed dated:25.01.2006 executed by 1 st defendant as attorney holder of plaintiff in favor of his wife, the 2 nd defendant. Therefore to avoid repetition of facts and evidence and also for convenience, they are taken together for consideration.
10. In the instant case, there is no dispute that, 2 nd defendant is the maternal aunt of plaintiff; 1 st defendant is the husband of 2nd defendant; when the plaintiff's mother Zereldern Mercy Joseph was in Kuwait, she had an intention to purchase 2 sites for the benefit of her minor sons viz., plaintiff and his brother Leo Benjamin Robert; since her sons were minor, she given the responsibility of purchasing the sites to her brotherin law, the 1st defendant; reposing faith and confidence on defendants, plaintiff's mother given money to the defendants to purchase the sites; accordingly on 31.07.1997 1st defendant as 13 OS.25150/2009 attorney holder of plaintiff's mother Zereldern Mercy Joseph purchased a site in her name situate at Horamavu, Agara village; on 05.02.2003, 1st defendant as attorney holder of the owner of suit property executed sale deed of the said property in favor of plaintiff.
11. Plaintiff to substantiate his contention that, since 1997 he and his brother Leo Benjamin Robert were under the care and custody of defendants, in the year 2005 when he was under the care and custody of defendants, defendants with an intention to knock off the suit property, by playing fraud created power of attorney dated:21.04.2005 in the name of 1 st defendant and by misusing the said power of attorney, 1st defendant executed sale deed dated:25.01.2006 in respect of suit property in favor of his wife, the 2nd defendant, therefore the said sale deed is not valid and binding on him, is placing reliance on his testimony, the testimony of his mother PW2 Zereldern Mercy 14 OS.25150/2009 Joseph & paternal aunt PW3 Irudya Mary and documentary evidence marked at Ex.P.1 to Ex.P.7.
12. Plaintiff in his examination in chief has reiterated the plaint averments. His mother Zereldern Mercy Joseph (PW2) & Maternal aunt Irudya Mary(PW3) have given evidence supporting the case of plaintiff. They stated that, since 1997 plaintiff and his brother Leo Benjamin Robert were under the care and custody of defendants. In the year 2005, when the plaintiff was just aged about 2122 years, 1st defendant who was taking care of plaintiff, without informing anything to him, has taken his signature and created power of attorney dated:21.04.2005 and on the basis of the said Power of attorney, 1st defendant has created sale deed dated:25.01.2006 in the name of his wife, the 2nd defendant. PW2 & 3 have stated that, at the time of making the power of attorney dated:21.04.205 or the sale deed dated:25.01.2006 defendants have not paid any amount to plaintiff.
15
OS.25150/2009
13. Defendants to substantiate their contention that, after purchase of suit property in the name of plaintiff under the registered sale deed dated:05.02.2003, plaintiff's mother Zereldern Mercy Joseph started complaining defendants that, the suit property situate at remote place, it takes lot of time for the improvement of the said site, the BDA has issued preliminary notification for the acquisition of land in which land the suit property situate for formation of Arkavathi Layout, the neighboring owners have encroached suit property, therefore she do not want the said site and in view of the above complaints made by plaintiff's mother Zereldern Mercy Joseph against defendants, defendants made up their mind to acquire the suit property, 1St defendant by making payment of entire sale consideration of Rs.1,70,000/, got the power of attorney dated:21.04.2005 from plaintiff, on the same day plaintiff has also executed affidavit stating that, he received the entire sale consideration from the 1st defendant and hand over the 16 OS.25150/2009 possession of the suit site to him, 1st defendant who purchased the suit property from plaintiff by making payment of entire sale consideration sold the said site to his wife, the 2 nd defendant by executing the sale deed dated:25.01.2006, the power of attorney & affidavit dated:21.04.2005 executed by plaintiff in favor of 1 st defendant and the sale deed dated:25.01.2006 executed by 1 st defendant in favor of his wife, the 2 nd defendant are all legal and valid documents and they are binding on plaintiff, are placing reliance on the sole testimony of DW1 Patrick Peter and documentary evidence marked at Ex.D.1 to Ex.D.22.
14. The learned counsel for the plaintiff has strenuously contended that, from the material on record, it is evident that, when the plaintiff's mother, was in Kuwait, she reposing faith and confidence on defendants entrusted them with the responsibility of purchasing two sites for the benefit of her minor children. In the year 1997 1st defendant, as attorney holder of plaintiff's mother purchased a site situate at Horamavu, Agara 17 OS.25150/2009 village. In the year 2003 he, as attorney holder of the erstwhile owner of the suit property executed sale deed of the said property in favor of plaintiff under Ex.P.6 Sale deed. From the address of the plaintiff and 1st defendant noted in Ex.P.6 it is clear that, in the year 2003 plaintiff was residing along with defendants. When the plaintiff was under the care and custody of defendants and the 1st defendant who is taking care of plaintiff in the fiduciary capacity has created Ex.D.1 Power of attorney and Ex.P.2 Affidavit without informing anything to the plaintiff. From the facts stated by DW1 in the cross examination, it is clear that, at the time of making Ex.D.1 & D2, he has not paid any amount to plaintiff. 1St defendant created Ex.D.1 & D2 without making any payment and by playing fraud on plaintiff. In Ex.D.1 Power of Attorney nowhere it is stated that, plaintiff authorized the 1st defendant to execute the sale deed of the suit property. He submits that, 1st defendant on the basis of Ex.D.1 & D2 which were created by fraud and having no value in the eye of law executed Ex.D.6 sale deed dated:25.01.2006 in favour of 18 OS.25150/2009 his wife the 2nd defendant. He submits that, the defendants failed to establish any of the reasons stated by them which made the plaintiff and his mother to take a decision to sell the suit property. Absolutely there was no necessity for the plaintiff to sell the suit property. He submits that, mere marking of document is not a proof. Defendants failed to prove that, Ex.D.1, D2 & D6 are the genuine documents. He submits that, in the year 2009 when the plaintiff and his mother visited to the suit property, they came to know that, defendants by taking the assistance of estate agents making attempts to sell the suit property. Then immediately, the plaintiff and his mother obtained Encumbrance certificate of the suit property, then they came to know that, defendants created Ex.D.6 sale deed on the basis of Ex.D.1 Power of Attorney. Then only they realized the fraud played by defendants. When the plaintiff came to know about the fraud played by defendants, he failed to recollect and to say, when and how 1st defendant has created Ex.D.1 & D2. He submits that, if the totality of the material available on record is 19 OS.25150/2009 taken into consideration, it is clear that, when the plaintiff was under the care and custody of defendants and reposing faith and confidence on them, without making payment of any amount and without taking consent of plaintiff's mother, Ex.D.1 Power of Attorney & Ex.D.2 affidavit were made and on the basis of the said illegal documents, Ex.D.6 Sale deed was made. The learned counsel for the plaintiff in support of his arguments placed reliance on the following judgments:
1. AIR 2011 KAR 103 - PILLA MUNIYAPPA & OTHERS V/s.
H.ANJANAPPA & OTHERS.
2. LAWS (KER) 1952/2/28 -
SEITHAMMARAKKATH MAMMAD V/s.
KOYOMMATATH MAMMAD.
3. AIR 1971 SC 1865 - SAIT TARAJEE
KHIMCHAND & OTHERS V/s.
YELAMARTI SATYAM & OTHERS.
15. The learned counsel for the defendants has
strenuously contended that, it is settled principle of law that, fraud is to be specifically pleaded and it has to be proved 20 OS.25150/2009 substantially by producing cogent and convincing evidence. He submits that, fraud cannot be proved by brining some suspicious circumstances on record. In the instant case, plaintiff has not specifically pleaded regarding, how the fraud was played. From the material on record would show that, plaintiff is a B.com graduate. He knows English reading and writing. After understanding the contents of Ex.D.1 & D2, he signed on them.
Defendants by leading cogent evidence has proved the circumstances under which the plaintiff and his mother decided to sell the suit property. He submits that, from Ex.D.2 Affidavit it is clear that, plaintiff by receiving the entire sale consideration has handed over the possession of the suit property to the 1st defendant. In Ex.D.2 it is clearly stated that, plaintiff by receiving full consideration, transferred right, title & interest of suit property in favor of 1 st defendant. Ex.D.1 Power of Attorney and Ex.D.2 Affidavit were made on the same day. A conjoint reading of Ex.D.1 & D2 it is clear that, Ex.D.1 Power of attorney was made in favor of 1 st defendant coupled 21 OS.25150/2009 with interest. Therefore plaintiff cannot revoke Ex.D.1 Power of Attorney. From Ex.D.1 & D2 it is clear that, under the said documents 1st defendant acquired right over the suit property and also an authority to sell the said property. Therefore 1 st defendant has validly sold the suit property in favor of his wife, the 2nd defendant by executing Ex.D.6 sale deed dated:25.01.2006. He submits that, nonexamination of 2nd defendant is not fatal to the case of defendants. He submits that, plaintiff failed to prove that, defendants by playing fraud created Ex.D.1 & D2. On the other hand, on consideration of the material on record would show that, Ex.D.1, D2 & D6 are the genuine and legal documents. The learned counsel for the defendants in support of his arguments placed reliance on the following judgments:
1. ROOP KUMAR V/S. MOHAN THEDANI -
MANU/SC/0276/2003.
In this judgment, the Hon'ble Supreme Court of India has opined as under:
"21. The grounds of exclusion of extrinsic evidence are (i) to admit inferior 22 OS.25150/2009 evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their inventions, and one which should be paced beyond the reach of future controversy, bad faith and treacherous memory."
2. BENGAL JUTE MILL CO. LTD V/S. LALCHAND DUGAR -
MANU/WB/0073/1963.
In this case, defendants are placing reliance on observation made in para No.23 of the judgment, which reads thus:
"23. ............ the principles embodied in Sections 91 and 92 of the Evidence Act lay down the principles of natural justice, and the Court in such a case of violation should come to the aid of the aggrieved party."
3. GIAN CHAND AND BRO'S & ORS V/S. RATHAN LAL - MANU/SC/0015/2013.
4. UNION OF INDIA V/S. CHATURBHAI M PATEL & CO - MANU/SC/46/1975.
In this judgment, the Hon'ble Supreme Court of India has opined as under:
"Conspiracy to fraud shall be proved by evidence and it must be established beyond reasonable doubt."23
OS.25150/2009
5. A.C.ANANTHASWAMY & ORS. V/S. BORIAHA (DEAD) BY LR'S -
MANU/KA/0655/2004.
In this judgment, the Hon'ble Supreme Court of India has opined as under:
"5. .............. Fraud is to be pleaded and proved. To prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representation made was false to the knowledge of the party making such representation."
6. NATIONAL TECH. INSTI. HOUSING COOPERATIVE SOCIETY LTD V/S. THE PRINCIPAL SECRETARY, GOV.T OF KARNATAKA, REVENUE DEP.T -
MANU/KA/1586/2012.
In this judgment, the Hon'ble High Court of Karnataka has opined as under:
"Fraud is a conduct either by letter or words, which induces the other person or authority to take definite determinative stand as a response to conduct of the former either by words or letter. It is not enough to use such general words as fraud, deceit or machinations. - Where fraud is charged against the opposite party, it is plain and basic rule of pleadings that in order to make out a case of fraud, there must be an 24 OS.25150/2009 express allegation of fraud, and all material facts in support of the allegations must be laid down in full and with a high degree of precision. - The fraud is purely a question of fact. How the plea of fraud is to be pleaded is clearly set-out in Order 6 Rule 4 of Code of Civil Procedure."
7. LAXMIBAI (DEAD) THR LR'S & OTHERS - MANU/SC/0072/2013.
In this judgment, the Hon'ble Supreme Court of India has opined as under:
"In the matter of appreciation of evidence of witnesses, it is not the number of witnesses who entered the witnesses but the quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honored principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act."
8. E. AMARNATH RAO & OTHERS V/S. G.VIJAYA GOWRI -
MANU/AP/0858/2011.
In this case, the defendants are placing reliance on observation made in para No.16 of the judgment, which reads thus: 25
OS.25150/2009 "16. In this context, it is to be kept in mind that in every case of non-examination of the party to the suit, the Court is not supposed to draw adverse inference against him automatically. Before drawing adverse inference, the court has to take into consideration the pleadings of the parties, the effect of the evidence adduced by the opposite party, the evidence forthcoming on record and the justifiable circumstances to draw an adverse inference. Drawing of adverse inference cannot be said to be automatic whenever a party to the suit does not offer himself to be a witness in the course of the trial."
9. NATHUNI MAIN & OTHERS V/S. AMIR HUSSAIN & OTHERS -
MANU/BH/0314/1991.
In this case, the defendants are placing reliance on observation made in para No.57 of the judgment, which reads thus:
"57. Sec.114 of Evidence Act does not say that adverse inference has to be drawn. Adverse inference for non-examination of an oral witness cannot be drawn if there are other cogent evidence on record. In a case of this nature, where both the parties have adduced evidence, the same has to be considered on the basis of preponderance of probabilities on the basis of such evidence."
16. Sec.17 of Indian Contract Act defines fraud. It reads thus:
26
OS.25150/2009 SECTION 17 IN THE INDIAN CONTRACT ACT, 1872
"17. 'Fraud' defined.--'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:--
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent."
17. Taken into consideration the ingredients of fraud and the ratio laid down in the judgments cited by defendants regarding the standard of proof required to prove fraud, let us consider the evidence on record.
18. Ex.P.4 is the Secondary School Leaving Certificate of plaintiff. A perusal of the same would show that, his date of birth is 08.12.1984. Ex.P.6 is the certified copy of the sale deed 27 OS.25150/2009 dated:05.02.2003 executed by 1st defendant as attorney holder of N.Kantharaju, the erstwhile owner of suit property in favor of plaintiff. In Ex.P.6 the age of the plaintiff is noted as 18years. Defendants have not disputed Ex.P.6 sale deed. Defendants have produced the original sale deed dated:05.02.2003 and it was marked as Ex.D.7. In Ex.P.6( Ex.D.7) Sale deed, the address of 1st defendant is noted as "R/at:No.109, 5th Cross, Vivek Nagar, Further Extension, Bangalore 560047". The address of plaintiff is noted as "C/o.Patrick Peter, R/at:No.109, 5th Cross, Vivek Nagar, Further Extension, Bangalore560047". Thus the recitals of Ex.P.6(D7) sale deed would support the contention of the plaintiff that, in the year 2003, when the 1 st defendant as attorney holder of N.Kantharaju the erstwhile owner of suit property, executed the said sale deed in favor of plaintiff who was just 18years old, plaintiff was residing along with defendants.
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OS.25150/2009
19. PW1 to 3 have consistently stated that, the father of plaintiff was addicted to bad vises, he was not taking care of his wife and children, therefore in the year 1988, plaintiffs mother went to Kuwait to earn bread. From Ex.P.4 & 5 Secondary School Leaving Certificates, it is clear that, the date of birth of plaintiff is 08.12.1984 and the date of birth of his younger brother Leo Benjamin Robert is 30.12.1986. Thus from the material on record, it is evident that, in the year 1988 when the plaintiff's mother went to Kuwait, the age of plaintiff was 4 years and the age of his younger brother was 2 years. PW1 to 3 have stated that, plaintiff's mother while going to Kuwait has given the responsibility of maintaining her minor children to her sisters namely Lalitha Das & Irudya Mary. During the course of cross examination of PW2 Zereldern Mercy Joseph, the mother of plaintiff the counsel for the defendants has made a suggestion that, she gone to Kuwait because her sister was living there but not for work. PW2 has denied the said suggestion. It is needless to say that, an advocate is a mouth 29 OS.25150/2009 piece of his client and he will put suggestions to the opposite party on the basis of instructions given by his client. In the judicial proceedings, a party will discloses his contentions by making suggestion to his opponent or opponent witness during the cross examination. The contention of defendants that, in the year 1988, PW2 went to Kuwait by leaving her minor children in India and by giving them to the custody of her sisters not to do work to earn bread but just for the reason that, her sister was there so she went to Kuwait, appears to be highly improbable.
20. 1st defendant who was examined as DW1, in the cross examination has admitted that, PW2 Zereldern Mercy Joseph, while going to Kuwait has given the custody of her minor children to her sisters viz., Lalitha Das and Irudya Mary. PW1 to 3 have stated that, in view of the plaintiff's father was addicted to bad vices and he was not taking care of his wife and children, PW2 Zereldern Mercy Joseph, the mother of plaintiff went to Kuwait to earn bread.
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OS.25150/2009
21. During the course of cross examination of PW3, the learned counsel for the defendants has made the following suggestions, which were denied by PW3.
''ಸದರಿ ನನನ್ನ ಅಕಕ್ಕ ಜರರಾಲಲ್ಡಿನ್ ಮರರ್ಸಿ ಜಜಜಜೋಸಜಫ್ ಕಕುವಜವೈತ್ ಗಜ ಹಜಜಜೋಗಕುವುದಕಕ್ಕಕ್ಕಿಂತ ಮೊದಲಕು ಅವಳಳು ಹರಾಗಜ ಅವಳ ಗಕ್ಕಿಂಡ ಬಜಕ್ಕಿಂಗಳಳೂರಿನಲಲ್ಲಿ ಒಟಟ್ಟಿಗಜ ವರಾರಸಕುತತ್ತಿದದ್ದರಕು ಅಕ್ಕಿಂದರಜ ಸಕುಳಳುಳ. ಈಗಲಜ ಸಹರಾ ನನನ್ನ ಅಕಕ್ಕ ಹರಾಗಜ ಅವಳ ಗಕ್ಕಿಂಡ ಬಜಕ್ಕಿಂಗಳಳೂರಿನಲಲ್ಲಿಯಜೋ ವರಾರಸಕುತತ್ತಿದರಾದ್ದರಜ ಅಕ್ಕಿಂದರಜ ಸಕುಳಳುಳ.
ನನನ್ನ ಅಕಕ್ಕ ಹರಾಗಜ ಅವರ ಮಕಕ್ಕಳನಕುನ್ನ ಅವಳ ಗಕ್ಕಿಂಡ ಫಜಫಜೋಡಿ ರರಾಬರರ್ಸಿ ಚಜನರಾನ್ನಗಿ ನಜಜಜೋಡಿಕಜಜಳಳುಳತತ್ತಿದದ್ದರಕು ಅಕ್ಕಿಂದರಜ ಸರಿಯಲಲ್ಲಿ. ನನನ್ನ ಅಕಕ್ಕಳ ಗಕ್ಕಿಂಡ ಫಜಫಜೋಡಿ ರರಾಬರರ್ಸಿ ನಿವವೃತತ್ತಿಯರಾದ ನಕ್ಕಿಂತರ ಅದರಿಕ್ಕಿಂದ ಬಕ್ಕಿಂದ ಎಲರಾಲ್ಲಿ ಮೊತತ್ತಿವನಕುನ್ನ ನನನ್ನ ಅಕಕ್ಕಳಿಗಜ ಕಜಜಟಟ್ಟಿರಕುತರಾತ್ತಿರಜ ಅಕ್ಕಿಂದರಜ ಸಕುಳಳುಳ. ಸದರಿ ಫಜಫಜೋಡಿ ರರಾಬರರ್ಸಿ ಮಧಧ್ಯಪರಾನ ಮರಾಡಕುತತ್ತಿದದ್ದರಕು, ದಕುಶಶ್ಚರಗಳಿಗಜ ಬಲಯರಾಗಿದದ್ದರಕು, ಎಕ್ಕಿಂದಕು ಈ ದರಾವರಾಗಜಜಜೋಸಕ್ಕರ ಮಕುಖಧ್ಯ ವಿಚರಾರಣಜಯಲಲ್ಲಿ ಸಕುಳಳುಳ ಸರಾಕಕ್ಷಿ ನಕುಡಿದಿರಕುತಜತ್ತಿಜೋನಜ ಅಕ್ಕಿಂದರಜ ಸರಿಯಲಲ್ಲಿ."
22. Thus according to the defendants, despite the father of plaintiff was a good person and he was taking care of his wife and children, PW2 the mother of plaintiff went to Kuwait by giving her minor children to the custody of her sisters. As 31 OS.25150/2009 contended by defendants, if in the year 1988, PW2 & her husband were in cordial terms, while going to Kuwait, there was no necessity for her to given the custody of her minor children to her sisters. The fact that, PW2 went to Kuwait by leaving her 2 minor children of age about 4 years and 2 years and by giving them to the custody of her sisters, would support the testimony of PW1 to 3 that, the relationship of PW2 & her husband was not good, they were living separately, plaintiff's father was not maintaining plaintiff, his brother and mother, therefore his mother PW2 Zereldern Mercy Joseph, went to Kuwait to earn livelihood. In view of my afore said findings, I hold that, the above extracted suggestions made by defendants to PW3 and also the suggestion to PW2 that, she went to Kuwait not to do work would primafaice appears to be untrue suggestions. It appears to me that, defendants have made the above suggestions to mitigate the contentions of the plaintiff about the pathetic conditions under which his mother went to Kuwait to earn 32 OS.25150/2009 bread by leaving her minor children in India by giving them to the custody of her sisters.
23. PW1 to 3 have consistently stated that, in the year 1997 defendants voluntarily came forward to take the custody of plaintiff and his brother. At that time, the age of plaintiff was 11 years and his brother was 9 years. Plaintiff's mother reposing faith on defendants, has agreed and given the custody of her minor children to defendants. Since then, plaintiff and his younger brother were under the care and custody of defendants.
24. Defendants denied the said testimony of PW 1 to 3, but they have not stated since 1997 and more particularly in the year 200305 in which years plaintiff has purchased the suit property under Ex.P.6(Ex.D.7) sale deed and Ex.D.1 power of attorney and Ex.D.2 Affidavit were made. In the cross examination of PW1 to 3, defendants except making a suggestion that, at no point of time, plaintiff or his younger brother were under their care and custody, have not made attempt to elicit in 33 OS.25150/2009 the year 200305 in whose custody plaintiff and his younger brother were there. As I have already stated above, the recitals of Ex.P.6 (Ex.D.7 sale deed) an undisputed document would support the contention of plaintiff that, in the year 2003 he was residing along with defendants. DW1 in the crossexamination at page No.24 has admitted that at the time of making Ex.P.6 (Ex.D.7) sale deed he was residing in the address mentioned therein. Thereafter, he voluntarily stated that at the time of making the said sale deed, he was actually residing at Ramamurthynagar, but in Ex.P.6 (Ex.D.7) sale deed by mistake it was noted, that he was residing in Vivek Nagar. Further he stated that upto the year 2000 he was residing in Viveknagar thereafter, he left the said place and started to reside in Ramamurthynagar. The above statements of DW1 are contrary to the recitals of Ex.P.6 (Ex.D.7) sale deed. Defendants have not produced any document to show that since 2000 they have been residing in Ramamurthynagar.
34
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25. DW1 in the crossexamination at page No.27 has stated that at the time of making Ex.P.6 (Ex.D.7) sale deed plaintiff was residing along with his maternal aunts but, he do not know exactly with which maternal aunt, he was residing. The say of DW.1 that in the year 2003 in which year he as a representative of plaintiff's mother negotiated with the erstwhile owner of the suit property, finalized the sale talks, took the GPA from the erstwhile owner and executed Ex.P.6 (Ex.D.7) sale deed in favor of plaintiff, he do not know exactly with whom the plaintiff was residing at that time cannot be believed. Admittedly at the time of making Ex.P.6 (Ex.D.7) sale deed the age of plaintiff was 18 years. 1 St defendant as a representative of plaintiff's mother and also as power of attorney of erstwhile owner of the suit property has executed the sale deed in favor of plaintiff. DW1 in the evidence has stated that, on the basis of instructions given by him and plaintiff Ex.P.6 (Ex.D.7) sale deed was prepared. Having regard to the age of plaintiff at the time of making Ex.P.6 (Ex.D.7) sale deed and the responsibility which 35 OS.25150/2009 the 1st defendant was discharging at that time without any difficulty it can be said that as per his instructions the said sale deed was made for the benefit of plaintiff. When such is the case, the say of DW1 that at the time of making Ex.P.6 (Ex.D.7) sale deed he do not know along with which maternal aunt plaintiff was residing and by mistake his wrong address was mentioned in the sale deed appear to be not true. On the other hand, if the totality of the evidence is taken into consideration it would give an indication that DW1 is making above statement in an attempt to substantiate his contention that at the time of making Ex.P.6 (Ex.D.7) sale deed plaintiff was not under the care and custody of himself and his wife, the 2nd defendant. In the cross examination of PW1 to 3 except putting suggestion that, in the year 200305 plaintiff was not under the care and custody of defendants, nothing has been elicited to disbelieve their testimony nor made attempt to elicit, with whom plaintiff was residing in those years. From the facts stated by PW1 to 3 and DW1 on oath, it is clear that in the year 1997 and in the year 36 OS.25150/2009 2003 plaintiff's mother has given responsibility of purchasing sites to 1st defendant. Accordingly, 1st defendant as attorney holder of plaintiff's mother got Ex.P.1 sale deed dated:31.07.1997 in respect of site situate in Horamavu, Agara village and in the year 2003, 1st defendant as attorney holder of erstwhile owner of suit property has executed Ex.P.6 (Ex.D.7) sale deed in favor of plaintiff. As contended by defendants, in the year 1997 and 2003 if the plaintiff and his brother were not in custody of defendants and they were in custody of their other maternal aunts, the question of plaintiff's mother giving responsibility of purchasing sites to defendants by reposing faith on them would not arise. The fact that, since 1997 to 2003 1 st defendant as representative of plaintiff's mother who was in Kuwait searched the sites, finalized the sale talks, paid sale consideration to the owners of sites on behalf of plaintiff's mother and made Ex.P.1 and Ex.P.6 (Ex.D.7) sale deeds would support the testimony of PW1 to 3 that, since 1997 plaintiff and his younger brother were under the care and custody of 37 OS.25150/2009 defendants, therefore, reposing faith on them plaintiff's mother given responsibility to them to purchase the sites for the benefit of plaintiff and his younger brother.
26. In para No.8 to 10 of the written statement, defendants have stated that, after purchase of suit property under Ex.P.6 (Ex.D.7) sale deed, plaintiff's mother changed her mind. She started complaining the defendants by saying that, the suit property situate in a remote place, it would take long time to become it habitable, the neighboring site owner of the suit property had encroached a major portion of the said property, BDA has issued preliminary notification for the acquisition of land in which the suit property situate. Plaintiff's mother while talking to her relatives through phone who are also relatives of defendants was complaining against defendants by saying that, she by reposing faith on them given money to purchase site, but they betrayed her by purchasing a site having so many complications. Having regard to the above allegations 38 OS.25150/2009 made by plaintiff's mother, defendants decided to purchase the suit property for a sum of Rs.1,70,000/. In para No.6 of the examination in chief, DW1 (1st defendant) has reiterated and reaffirmed the above averments of the written statement.
27. The burden of proving the above contentions is on defendants. In the written statement, defendants have not stated, when the BDA has issued preliminary notification for the acquisition of land, in which the suit site was formed. DW1 in the examination in chief, except baldly stating that, BDA has issued notification for the acquisition of land, in which the suit site was formed, has not stated, when the said notification was issued and to acquire which lands. For the reasons best known, defendants have not produced the preliminary notification alleged to have been issued by the BDA for the acquisition of the land, in which the suit site was formed. Thus there is zero evidence to prove that, after the plaintiff purchased the suit site 39 OS.25150/2009 under Ex.P.6 (Ex.D.7) sale deed, the BDA has issued notification for the acquisition of the land, in which the suit site was formed.
28. Along with written arguments, the counsel for the defendants produced the judgment of Hon'ble Supreme Court of India in the case of "BONDU RAMASWAMY V/S. BENGALURU DEVELOPMENT AUTHORITY". A perusal of the said judgment would show that, in the said case, the acquisition of land by BDA for formation of ArkavathiHennurDevanahalli Layout under preliminary notifications dated:03.02.2003 and 16.09.2003 was questioned. Under the said notifications, the BDA proposed to acquire 3839 acres & 12 guntas of land situate in 16 villages namely Dasarahalli, Byrathikhane, Chellakere, Geddalahalli, K.Narayanapura, Rachenahalli, thanisandra, Amaruthahalli, Jakkur, Kempapura, Sampigehalli, Srirampura, Venkateshapura, Hennur, Hebbala and Nagavara, for the formation of Arkavathi Layout. Defendants have not stated in which survey number, the suit 40 OS.25150/2009 site was formed. In Ex.P.6 (Ex.D.7) sale deed it is stated that, plaintiff's vendor A.Kantharaju has acquired the suit site i.e., site No.8 under the registered sale deed dated:20.11.1996. In the above cited judgment, the legality of preliminary notification issued by BDA for acquisition of agricultural lands were questioned. From the material on record would show that, the suit property is a site having site, katha & assessment number. Defendants have not stated, in which land, the suit site was formed. Therefore absolutely there is zero evidence to prove that, after the plaintiff purchased the suit property, the BDA has issued preliminary notification for the acquisition of land, in which the suit site was formed.
29. Defendants in the written statement and DW1 in the examination in chief, except baldly stating that, the neighboring site owner of the suit property has encroached a major portion of the said site, has not stated, the name of the neighboring site owner who encroached a portion of the suit property. If 41 OS.25150/2009 encroached, what extent of suit property was encroached. In the cross examination of PW1 & 2, no attempt was made to elicit the name of the neighbor who alleged to have encroached a portion of suit property and also the extent of site which was encroached. Thus except the selfserving testimony of DW1, there is no cogent and convincing material to accept the contention of the defendants that, the neighboring site owner encroached a major portion of the suit site.
30. Admittedly at the time of purchase of suit property in the name of plaintiff under Ex.P.6 (Ex.D.7) sale deed, the plaintiff's mother, PW2 Zereldern Mercy Joseph was in Kuwait. Defendants in the written statement and DW1 in the evidence has baldly stated that, after purchase of suit property in the name of plaintiff, PW2 changed her mind, she started complaining defendants by stating that, the suit property situate at a remote place, therefore, it would take long time to become it habitable. DW1 in the evidence has stated that, in this regard, 42 OS.25150/2009 plaintiff's mother told to her relatives who are also the relatives of defendants and stated that, defendants betrayed her. In the written statement defendants have not stated the name/s of the relatives to whom PW2 called from Kuwait and complained against them. During the course of cross examination of PW1 to 3, no attempt was made to elicit that, PW2 called any of her relatives, who are also the relatives of defendants and made allegation against defendants by telling that, they betrayed her by purchasing a site having complications. Thus except the bald testimony of DW1, there is no iota of evidence to accept the contention of the defendants that, after purchase of suit property in the name of plaintiff under Ex.P.6 (Ex.D.7) sale deed, PW2 complained or made allegations against defendants regarding purchasing of the said property, by calling her relatives who are also relative/s of defendants. Therefore the defendants failed to prove the reasons stated by them which according to, compelled the plaintiff and his mother to sell the suit property. 43
OS.25150/2009
31. According to the defendants, they agreed to purchase the suit property from the plaintiff for a sum of Rs.1,70,000/. Defendants have not stated when and with whom they negotiated to purchase the suit property and on which day the sale talks were finalized. In the cross examination of PW1 & 2, no attempt was made to elicit that, virtually plaintiff, his mother and defendants had a talk regarding sale and purchase of suit property and after negotiations, the plaintiff and his mother agreed to sell the suit property for a sum of Rs.1,70,000/. According to the defendants, after the plaintiff and his mother agreed to sell the suit property for Rs.1,70,000/, Ex.D.1 Power of Attorney and Ex.D.2 Affidavit were made on 21.04.2005. Ex.D.1 Power of Attorney is silent regarding payment of Rs.1,70,000/ to the plaintiff. In Ex.D.2 Affidavit, it is mentioned that, on 21.04.2005 defendants paid a sum of Rs.1,45,000/ to the plaintiff and the plaintiff has received the said amount as entire sale consideration and also handed over the possession of the suit property to the 1 st defendant. Therefore 44 OS.25150/2009 the recitals of Ex.D.2 Affidavit would not support the contention of the defendants that, 1st defendant purchased the suit property from plaintiff for a sum of Rs.1,70,000/. As I have already stated above, in Ex.D.2 Affidavit, it is mentioned that, plaintiff received Rs.1,45,000/ from the 1st defendant as entire sale consideration and transferred the right, title, interest & possession of the suit property to the 1 st defendant. Since the recitals of Ex.D.2 Affidavit would not support the case of the defendants that, 1st defendant purchased the suit property for a sum of Rs.1,70,000/, the defendants offered an explanation to it in para No.10 of the written statement. It reads thus:
"10. Anguished by these baseless allegations of the mother of the plaintiff, the defendants decided that, they will re-acquire the suit schedule property and take on all issues touching upon the suit schedule property. Accordingly, the defendant No.1 had paid the plaintiff a sum of Rs.1,70,000/- (Rupees One Lakh Seventy Thousand only). This sum, constituted not only Rs.1,45,000/- being the agreed sale consideration for which the plaintiff agreed to convey the suit schedule property to the defendants, but also a sum of Rs.25,000/-, which the mother of plaintiff claimed that, the plaintiff was entitled to, on account of loss of profit/mesne, suffered, by acquiring the suit schedule property."45
OS.25150/2009
32. Thus according to the defendants, they paid Rs.1,45,00/ as sale consideration of suit property for which the plaintiff has agreed, but in view of plaintiff's mother claimed that, plaintiff was entitled to an additional sum of Rs.25,000/ on the count of loss of profit or interest, the 1 st defendant paid an additional sum of Rs.25,000/ to the plaintiff. Regarding payment of additional Rs.25,000/ defendants have not produced any document. In the written statement, defendants have not stated, when they paid Rs.25,000/ to the plaintiff. In the cross examination at page No.21 DW1 has stated that, on the date of execution of Ex.D.1 & Ex.D.2, he paid sale consideration of amount of Rs.1,45,000/ to the plaintiff in cash. After making the above statement, DW1 has voluntarily stated that, in addition to payment of Rs.1,45,000/, the mother of the plaintiff demanded additional sum of Rs.25,000/ and he paid the same in cash to the plaintiff on the same day in between 2 and 3 pm. In the cross examination at page No.32 DW1 has stated that, after he made the payment of Rs.1,45,000/ to the plaintiff, 46 OS.25150/2009 plaintiff's mother told him to pay additional Rs.25,000/ and deposit Rs.1,70,000/ to her account. Therefore he taken back Rs.1,45,000/ from plaintiff and deposited Rs.1,70,000/ to the account of PW3 Irudya Mary by adding Rs.25,000/. Thus the facts stated by DW1 in the cross examination at page No.32 would falsify his statement on oath made on 21.01.2017 that, after making Ex.D.1 & 2, plaintiff's mother called him and demanded to pay additional Rs.25,000/, therefore on 21.04.2005 in between 2 and 3 pm., he paid that additional Rs.25,000/ to the plaintiff in cash.
33. A perusal of Ex.P.6 (Ex.D.7) sale deed dated:05.02.2003 would show that, plaintiff purchased the suit property for a sum of Rs.60,000/. According to the defendants, in view of allegations made by plaintiff's mother against them regarding purchase of suit property as per Ex.D.2 Affidavit, they agreed to purchase the said property for a sum of Rs.1,45,000/. If the said contention of the defendants is accepted for a while, 47 OS.25150/2009 plaintiff is getting profit of Rs.85,000/ within 2 years. When such is the case, the statement of DW1 that, plaintiff's mother first agreed to sell the suit property for a sum of Rs.1,45,000/ and after making Ex.D.1 Power of Attorney and Ex.D.2 Affidavit, she called him and told to pay additional Rs.25,000/ on the count of loss of profit/ interest appears to be strange. The say of DW1 that, he immediately agreed for the demand made by plaintiff's mother to pay additional Rs.25,000/ despite he is giving profit of Rs.85,000/ to plaintiff within 2 years appears to be highly improbable. .
34. It is needless to say that, usually after conclusion of the sale talks, documents regarding sale and purchase of property will be made. After the document is made mentioning the terms & conditions of sale, if any changes are to be made, the parties will make a new document incorporating the changes. The statement of DW1 on oath that, after making of Ex.D.1 & 2, the plaintiff's mother called him and demanded to 48 OS.25150/2009 pay an additional sum of Rs.25,000/ would give an indication that, Ex.D.1 & 2 were made without finalizing the sale talks. If Ex.D.1 & 2 would have been made after finalizing the sale talks, the question of plaintiff's mother demanding 1st defendant to pay additional sum of Rs.25,000/ would not arise.
35. Plaintiff (PW1) in the examination in chief has stated that defendants by playing fraud created Ex.P.1 Power of Attorney. From the facts stated by PW1 in the examination in chief, it is clear that according to him, 1 st defendant has not paid any amount to him to purchase the suit property. In the crossexamination of PW1 made on 17.10.2012 the learned counsel for the defendants has made a suggestion that while making Ex.D.1 Power of Attorney in the presence of Notary defendants paid a sum of Rs.1,45,000/ to plaintiff and the remaining Rs.1,70,000/ was deposited to the bank account of plaintiff's mother. By putting the above suggestion, defendants contend that according to them, on the date of making of Ex.D.1 49 OS.25150/2009 Power of Attorney, Rs.1,45,000/ was paid to the plaintiff in cash. In addition to that, Rs.1,70,000/ was deposited to the bank account of plaintiff's mother. Thus, according to the defendants, to purchase the suit property , they paid Rs.1,45,000/ + 1,70,000/ i.e., Rs.3,15,000/ to plaintiff and his mother. From the above suggestions, it is clear that, there is no consistency in the contentions of the defendants regarding for what amount plaintiff and his mother agreed to sell and they agreed to purchase the suit property.
36. DW1 in the crossexamination at page No.32 has stated as under:
"Sale consideration was paid to the plaintiff by me afterwards the plaintiff's mother asked me to pay extra Rs.25,000/- and to deposit Rs.1,70,000/- to her account. I took Rs.1,45,000/- from the plaintiff and deposited Rs.1,70,000/- to the account of Irudya Mary by including extra amount of Rs.25,000/- from my pocket."
37. From the above statement, it is clear that, 1 st defendant has taken back Rs.1,45,000/ from the plaintiff 50 OS.25150/2009 which he alleged to have given to him on 21.4.2005 at the time of making Ex.D.1 Power of Attorney and Ex.D.2 Affidavit. Thus, according to defendants, the consideration amount which 1 st defendant alleged to have been given to plaintiff was taken back from him. Therefore, it is clear that a naya paise has not reached to the plaintiff regarding sale consideration.
38. In the above extracted statement, DW1 has stated that, after he made payment of Rs.1,45,000/ to the plaintiff, plaintiff's mother called and told him to pay additional Rs.25,000/and also directed him to take back Rs.1,45,000/ from plaintiff and deposit Rs.1,70,000/ to her account. DW1 has stated that he deposited sale consideration of Rs.1,70,000/ to the bank account of PW3 Irudaya Mary. DW1 has not stated who told him to deposit the sale consideration of Rs.1,70,000/ to the bank account of PW3 Irudaya Mary.
39. PW3 Irudaya Mary on oath has stated that, 1 st defendant has availed loan of Rs.1,70,000/ from her and he 51 OS.25150/2009 repaid the said loan by depositing to her bank account. A perusal of Ex.D 3 would show that on 2.5.2005 a sum of Rs.1,70,000/ was deposited to the bank account of PW3 Irudaya Mary. According to defendants, on 21.4.2005 1st defendant paid Rs.1,45,000/ to plaintiff and as per the instructions of plaintiff's mother, he taken back the said amount from the plaintiff to make deposit to the bank account of plaintiff's mother. DW1 has not stated as per alleged instructions of plaintiff's mother why he has not deposited the sale consideration amount to her account. A perusal of the deposition of DW1 would show that, once he say that on 21.4.2005 while making Ex.D.1 and D2 he paid Rs.1,45,000/ to plaintiff, plaintiff received the said amount as full sale consideration, executed Ex.D.2 affidavit transferring the right, title, interest and possession of the suit property in his favor. Again he says that after making of Ex.D.1 and D2 plaintiff's mother called him and told him to pay additional amount of Rs.25,000/, accordingly on the same day in between 2 and 3 52 OS.25150/2009 pm he paid Rs.25,000/ to the plaintiff in cash. Again he says that, on 21.04.2005 after he paid Rs.1,45,000/ to plaintiff, plaintiff's mother called him to take back that money from the plaintiff and to deposit in her bank account, accordingly he taken back the said amount from the plaintiff. Thus a careful perusal of deposition of DW1 would show that, there is no consistency in his evidence. Therefore, his testimony does not inspire confidence in the court. Whatever it may be, from the facts stated by DW1 in the crossexamination, one thing is very clear that regarding the alleged purchase of suit property he has not paid any amount either to plaintiff or to his mother.
40. I have already stated that the written statement is silent regarding when sale talks took place between plaintiff or his mother with defendants. Admittedly, no payment was made to plaintiff or his mother. Thus, from the evidence on record, it is clear that Ex.D 1 and D2 were made without holding talks 53 OS.25150/2009 regarding sale and purchase of suit property and without making payment of any amount to the plaintiff or his mother.
41. It is the specific contention of the defendants that, they agreed to purchase the suit property in view of plaintiff's mother made allegations against them that, they betrayed her by purchasing a property having complications. Thus according to defendants, their decision to purchase the suit property is a damage controlling exercise. Admittedly on 21.04.2005 on which day Ex.D.1 Power of Attorney and Ex.D.2 Affidavit were alleged to have been made, plaintiff's mother was in Kuwait. According to defendants, on that day, there was prohibition for the registration of suit property. When such is the case, if really the plaintiff and his mother were willing to sell the suit property and the defendants willing to purchase the suit property, they could have made an agreement incorporating the terms and conditions of sale. Defendants have not stated, why agreement of sale was not made incorporating the terms and conditions of 54 OS.25150/2009 sale. According to defendants though they helped the plaintiff and his mother to acquire the suit property and another site, plaintiff's mother made allegations against them. Therefore in such a situation, a prudent man will take all necessary precautions to avoid future complications. DW1 has stated that, at the time of making Ex.D.1 & D2, plaintiff was not residing with him and he was residing with his other maternal aunts'. As on the date mentioned on Ex.D.1 & D2, the age of plaintiff was 21 to 22 years. Therefore, he cannot be said as a matured person having business knowledge. When such is the case, if really plaintiff's mother who was in Kuwait has agreed to sell the suit property to the 1st defendant for a sum of Rs.1,45,000/ or Rs.1,70,000/ the defendants could have requested the maternal aunts' of plaintiff along with whom the plaintiff was alleged to have been residing to become witness/s to Ex.D.1 & D2, the documents alleged to have been made to evidence the sale transaction. Defendants have not given any explanation, why they did not request the maternal aunts' of plaintiff to 55 OS.25150/2009 become witness to Ex.D.1 & D2. The above conduct of the defendants would create a dent to accept their contention that, Ex.D.1 & D2 are the genuine documents made after consultation with plaintiff's mother.
42. As stated above, according to defendants, they made up their mind to purchase the suit property in view of plaintiff's mother made allegations against them. Therefore as I have already stated above, according to defendants, their decision to purchase the suit property is damage controlling exercise to have a good relationship with plaintiff and his mother. As stated by DW1, if he purchased the suit property from plaintiff by giving profit of Rs.85,000/ + Rs.25,000/ as demanded by plaintiff and his mother, then plaintiff and his mother were happy with him. When such is the case, defendants could have requested plaintiff to execute a valid sale deed in favor of 1 st defendant or 2nd defendant. DW1 in his evidence has stated that, at the time of making Ex.D.8 Sale deed in favor of his wife, he has not 56 OS.25150/2009 contacted plaintiff. In Ex.D.8 it is stated that, 1 st defendant as attorney holder of plaintiff has executed the said sale deed. In Ex.D.8 sale deed nowhere it is stated that, 1st defendant acquired right over the suit property by virtue of Ex.D.1 Power of Attorney and Ex.D.2 Affidavit. It is not the case of the defendants that, at the time of making Ex.D.8 plaintiff was not in Bengaluru. As contended by defendants, if really plaintiff and his mother would have agreed to sell the suit property to defendants and received consideration of Rs.1,45,000/ or Rs.1,70,000/, the defendants could have requested the plaintiff to come and execute Ex.D.8 Sale deed or at least to affix his signature as witness. At the cost of repetition, I say that, the recitals of Ex.D.8 sale deed would not support the contention of the defendants that, on 21.04.2005 by virtue of Ex.D.1 & D2, 1 st defendant acquired right, title and interest over the suit property. In Ex.D.8 sale deed it is stated that, 1 st defendant sold the suit property to his wife for a sum of Rs.3,00,000/. 2 Nd defendant has not entered into witness box. There is no evidence, 57 OS.25150/2009 how 2nd defendant got Rs.3,00,000/ to purchase the suit property. From the evidence on record it is clear that, defendants are living happily under a common roof. When the husband and wife living together happily under a common roof, a wife purchasing property from husband by paying consideration amount appears to be strange.
43. According to defendants, at the time of making Ex.D.1 Power of Attorney and Ex.D.2 affidavit plaintiff has become major, he was having worldly knowledge and business knowledge. Therefore, he alone came to execute the said documents. As contended by defendants, if Ex.D.1 and D2 would have been made after taking the consent of plaintiff's mother PW2 Zereldern Mercy Joseph and PW2 would have given consent for the plaintiff to go and execute necessary documents regarding transfer of suit property in favor of 1 st defendant by receiving sale consideration, she could have given instructions to her son, the plaintiff to deposit the sale consideration to her 58 OS.25150/2009 bank account. According to defendants, 1st defendant agreed to purchase the suit property from the plaintiff in view of plaintiff's mother PW2 made allegation against him that, they betrayed her. No man of common prudence will call a person who betrayed him/her to give responsibility of collecting sale consideration which he paid to his/her son and to deposit to his/her bank account. Therefore, the say of DW1 that after he made payment of Rs.1,45,000/ to plaintiff, plaintiff's mother called him and told him to collect back the said amount from plaintiff and to deposit in her account appears to be highly improbable.
44. The learned counsel for the defendants placing reliance on the judgment in the case of "ROOP KUMAR V/s. MOHAN TRIDANI" and "BENGAL JUTE MILL CO. LTD., V/s. LALCHAND DHUGA", has strenuously contended that, in Ex.P.6 (D7) sale deed which is admitted by plaintiff, it is stated that, 1st defendant while executing the said sale deed has handed over all the documents of suit property to him. Therefore 59 OS.25150/2009 the statement of PW1 on oath that, at the time of executing Ex.P 6(D7) sale deed, the 1st defendant has not handed over any document of suit property to him cannot be believed and the said statement contrary to the recitals of Ex.P.6 (D7) sale deed is excluded U/sec. 91 of Evidence Act.
45. No doubt in Ex.P.6 (D7) sale deed, it is mentioned that, at the time of execution of the sale deed 1 st defendant has handed over the title deeds of suit property to the plaintiff, who is just 18 years old. Plaintiff contends that, 1 st defendant on his behalf negotiated with the owner of suit property, finalized the talks, took power of attorney from owner and on the basis of the said power of attorney he executed Ex.P.6 (D7) sale deed in his favor. DW1 has admitted the said fact. Therefore from the evidence on record it is evident that, at the time of executing Ex.D.7 sale deed, 1st defendant was discharging his responsibility not only as the agent of the erstwhile owner of the suit property, but also as representative of plaintiff's mother. 60
OS.25150/2009 Admittedly, plaintiff has not purchased the suit property by investing his money. Plaintiff's mother who was in Kuwait given money to 1st defendant to purchase the property for the benefit of plaintiff. Defendants have produced Ex.D.7 the original sale deed of suit property made in the name of plaintiff. Defendants have not produced any document made to evidence plaintiff handing over original documents of suit property to them. In Ex.D.1 & D2 it is not stated that, plaintiff handed over original documents of suit property to 1st defendant. Therefore having regard to the fact that, defendants have produced original documents of suit property to the Court, despite there is no document evidencing handing over of original documents of suit property to them and the responsibility which the 1 st defendant was discharging at the time of execution of Ex.P.6 (D7) sale deed, I am of the view that, there is no reason to disbelieve the statement of PW1 that, after making Ex.P.6 (D7)sale deed, 1 st defendant as representative of his mother who given money to 61 OS.25150/2009 purchase the suit property retained all the documents of the suit property with him.
46. Defendants by placing reliance on the judgments reported in, "GIAN CHAND & BRO'S & OTHERS V/S. RATHAN LAL", "UNION OF INDIA V/S. CHATURBHAI M PATEL & CO.", "A.C.ANANTHASWAMY & OTHERS V/S. BORAIAH (DEAD) BY LRS" and "NATIONAL TECH INSTI. HOUSING COOPERATIVE SOCIETY LTD V/S. THE PRL. SECRETARY, GOV.T OF KARNATAKA, REVENUE DEPT", has strenuously contended that, plaintiff has not specifically pleaded about fraud. In the absence of pleadings, the evidence of PW1 is not sufficient to prove the ingredients of fraud.
47. It is settled principle that, to understand the case, the entire pleadings is to be looked into. On reading of plaint, it is clear that, the sum and substance of the plaintiff's case is that, when he was under the care and custody of defendants, his mother given the responsibility to 1st defendant to purchase a 62 OS.25150/2009 site for his (plaintiff) benefit. Accordingly, 1 st defendant negotiated with the owner of suit property, finalized the talks, paid consideration on behalf of his (plaintiff) mother, got the power of attorney in his favor and on the basis of the said power of attorney, he executed Ex.P.6 (D7) sale deed in his favor. After purchase of suit property , when he was residing along with defendants, to knock off the suit property, they created Ex.D.1 Power of attorney & D2 Affidavit an illegal documents without having any negotiation with him or his mother regarding sale of suit property and without making payment of any amount and on the basis of said illegal documents Ex.D.8 sale deed was created. Therefore, the defendants upon whom, plaintiff and his mother reposed faith and confidence, betrayed them by playing fraud. Therefore the contention of the defendants that, there is no specific pleadings in the plaint regarding fraud is not sustainable.
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48. The learned counsel for the defendants placing reliance on the judgments reported in "LAXMIBAI (DEAD) THR LRS & OTHERS", "E AMARNATH RAO & OTHERS V/S. G.VIJAYA GOWRI" AND "NATHUNI MAIN & OTHERS V/S. AMIR HUSSAIN & OTHERS", has contended that, in the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence is important. The counsel for the defendants submit that, 1st defendant as attorney holder of his wife, the 2nd defendant has lead evidence, therefore the Court cannot draw an adverse inference against 2 nd defendant for her nonexamination.
49. There is no dispute regarding the ratio laid down in the above cited judgments that, while appreciating the evidence on record, the probability of the evidence of witnesses is to be weighed and not counted. Merely because a party to the suit has not entered into witness box, the Court cannot automatically draw an adverse inference against that party. Before drawing an adverse inference, the Court has to see the allegations made 64 OS.25150/2009 against the party who has not entered into witness box and also the importance of evidence of the said party. In the instant case, plaintiff has made allegations against defendants - the husband and wife that, in view of his father was addicted to bad vises and not taking care of him, his younger brother and mother, his mother went to Kuwait to earn bread by leaving her minor children in India and by giving them to the custody of their maternal aunts, in the year 1997 defendants voluntarily came forward to take responsibility of maintaining plaintiff and his younger brother, his mother reposing faith and confidence on defendants given custody of her children to them, in addition to that, his mother has given responsibility of purchasing sites to them (defendants) for the benefit of her children. Accordingly 1 st defendant as the representative of his mother, purchased 2 sites. After purchase of suit property, when the plaintiff was residing along with defendants, they with an intention to knock off the suit property with a fraudulent intention created Ex.D.1 Power of Attorney and D2 Affidavit and on the basis of the said illegal 65 OS.25150/2009 documents, they created Ex.D.8 Sale Deed in the name of 2 nd defendant. Admittedly, now all the documents of suit property are standing in the name of 2nd defendant. Having regard to the allegations made against 2nd defendant and her relationship with plaintiff, the Court is of the opinion that, her evidence is more important and relevant to decide the real dispute in controversy between the parties. There is no explanation from the defendants for not entering the 2 nd defendant into the witness box to give evidence. In the foregoing paras, I have pointed out the material inconsistencies in the evidence of DW1. DW1 in the cross examination at page No.19 has stated that, he will not produce the sale deed made in the name of his wife because, his wife will not give the said sale deed to him. In the instant case, defendants have produced the original sale deed made in the name of 2nd defendant and it is marked at Ex.D.8. Thus on careful perusal of the deposition of DW1 would show that, he has not stated true facts before the Court. His evidence not appears to be trust worthy and natural. To cover one wrong, 66 OS.25150/2009 he made so many wrong statements on oath. For example, in the cross examination at page No.21, he stated that, on the date of making Ex.D.1 & D2, he paid Rs.1,45,000/ to the plaintiff in cash. He voluntarily stated that, after making Ex.D.1 & D2 as per the demand made by plaintiff's mother, he paid additional Rs.25,000/ to plaintiff in between 2 and 3 pm. In the cross examination at page No.32 he stated that, after he making payment of Rs.1,45,000/ to plaintiff, plaintiff's mother called and told him to take back the said money from plaintiff and to deposit the same with additional Rs.25,000/ to her bank account. Therefore he has taken back Rs.1,45,000/ from plaintiff. The facts stated by him regarding consideration amount, his address and address of plaintiff are contrary to the recitals of the documents produced by him. Therefore his evidence does not inspire confidence in the Court. When such is the case, the evidence of 2nd defendant who is claiming right, title, interest over the suit property is very much important to decide the case on hand. As I have already stated above, having 67 OS.25150/2009 regard to the allegation made against her that, she colluding with her husband created Ex.D.8 Sale deed, she ought to have been enter into witness box to say that, the sale deed made in her favor is a genuine sale deed. If she would have entered into witness box, the plaintiff would get an opportunity to subject her for cross examination regarding her income to pay the consideration amount mentioned in Ex.D.8 Sale Deed and regarding necessity of purchasing the suit property from her husband, when they are living together. In view of the above, I hold that, having regard to the facts of the case and the allegation made by plaintiff against defendants who are husband and wife and the relation ship of 2 nd defendant with plaintiff, 2nd defendant not entering into witness box without any justifiable reasons would compel the Court to draw an adverse inference that, the case set up by her is not true. In support of my view, I place reliance on the judgment of Hon'ble Supreme Court of India in the case of "MAN KAUR (DEAD) BY 68 OS.25150/2009 LRS V/S. HARTAR SINGH SANGHA REPORTED IN 2010 (10) SCC 512".
50. As I have already stated above, according to the defendants, in the year 2005 there was prohibition for the registration of sale of sites formed in agricultural land. Hence the absolute sale deed was not registered on 21.04.2005. To substantiate the said contention, defendants along with written arguments produced notification of Government of Karnataka published in the gazette dated:23.04.2005. In the said notification, it is stated that, the Government has noticed registration of an agricultural land as sites by creating bogus and fabricated documents without converting land into non agricultural purpose in accordance with the provisions of Karnataka Land Revenue Act. Therefore registration of a document pertaining to agricultural land mentioning as sites, buildings etc are declared as OPPOSED TO PUBLIC POLICY. In the said notification, it is stated that, the registering authorities before registering a document have to verify the 69 OS.25150/2009 genuineness of the documents produced along with a document submitted for registration regarding conversion of agricultural land for nonagricultural purpose in accordance with law. A perusal of Ex.P.6 (Ex.D.7) sale deed dated:05.02.2003 would show it was registered by describing the suit property as a site having katha number and assessment number. In the said sale deed, it is stated that, plaintiff's vendor M.Kantharaju purchased the said site under the registered sale deed dated:20.11.1996. Thus from the evidence on record, it is evident that, since 1996 the suit property has been considered as a site having katha and assessment number. It is not the contention of the defendant that, the suit property is an agricultural pocket. In Ex.D.7 sale deed, Ex.D.1 Power of Attorney & Ex.D.2 Affidavit, it is not stated that, the suit property is a part and parcel of an agricultural land. Therefore absolutely there is no prohibition for the registration of the sale deed of the suit property in the year 2005. The notification is dated:23.04.2005. Ex.D.1 & D2 were made on 21.04.2005. Thus the above 70 OS.25150/2009 documents were made before publication of the above stated notification by Government of Karnataka. Thus defendants failed to prove that, as on 21.04.2005 there was a prohibition for the registration of sale deed of the suit property. Making an affidavit on a stamp paper of Rs.20/ to transfer right, title & interest over an immovable property of a value more than Rs.100/ is illegal, void and it is having no value in the eye of law. It is in contravention of Sec.17 of Indian Registration Act. Therefore Ex.D.2 Affidavit is of no assistance to the defendants to prove that, under the said document, 1st defendant acquired right, title, interest and possession over the suit property.
51. As per Sec.17 of Indian Contract Act, if a document is made with an intention to deceive another person by stating the fact which is not true or which he does not believe to be true, is a fraud. From the evidence on record it is clear that, on 21.04.2005 without making payment of amount noted in Ex.D.2 Affidavit, the said affidavit has been made to create right, title 71 OS.25150/2009 and interest over an immovable property of a value more than Rs.100/. As per Sec.17 of Indian Registration Act, if any document is made to create right, title and interest in respect of an immovable property of a value of more than Rs.100/ it should be compulsorily registered. Defendants have stated that, in the year 2005 the registration of agricultural site was banned. Therefore Ex.D.1 Power of Attorney and Ex.D.2 Affidavit were made to evidence the sale transaction. They failed to prove the said contention. The Hon'ble Supreme Court of India in the case of "SURAJ LAMPS & INDUSTRIES (P) V/S. STATE OF HARYANA & ANOTHER", has clearly stated that, a right over an immovable property cannot be transferred by making power of attorney coupled with Will and/or affidavit. Therefore as per the ratio laid down in the above cited judgment at any stretch of imagination Ex.D.1 Power of Attorney and Ex.D.2 Affidavit cannot be considered as legal documents to transfer the right, title & interest of suit property.
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52. According to the defendants, Ex.D.1 Power of Attorney was made coupled with interest. In the instant case, plaintiff contends that, Ex.D.1 was created by fraud. Defendants contend that, it is a genuine document. Therefore defendants cannot dispute the recitals of Ex.D.1 Power of Attorney. In Ex.D.1 Power of Attorney, nowhere it is stated that, it was made to create interest in favor of an agent, the 1 st defendant. In addition to that, in Ex.D.1 it is not stated that, under the said Power of attorney, plaintiff authorized the 1 st defendant to execute the sale deed of suit property. In Clause1, it is baldly stated that, the plaintiff has authorized to execute or present any documents in the office of the registration. At the cost of repetition, I say that, according to defendants Ex.D.1 Power of Attorney was made to create an interest in favor of 1 st defendant in respect of suit property and authorizing him to deal with said property as if, he is the owner of the said property. When such is the case, there is no reason why in Ex.D.1 it is not specifically stated that, the plaintiff has authorized the 1 st defendant to 73 OS.25150/2009 execute the sale deed of the suit property. In view of my afore said findings, I hold that, if the evidence on record is evaluated in threadbare, it is clear that, 1 st defendant upon whom the plaintiff's mother reposed faith and confidence and given responsibility to him to purchase the site for the benefit of plaintiff with an intention to knock off the said property without making any payment and without deliberation has made Ex.D.1 Power of Attorney and Ex.D.2 Affidavit, an illegal documents which are not having any value in the eye of law and on the basis of the said documents, though he has no authority to deal with the suit property, he executed Ex.D.8 Registered Sale Deed of the suit property in favor of his wife the 2 nd defendant. In view of my findings that, at the time of execution of Ex.D.8 sale deed, 1st defendant was not having any manner of right, title, interest or authority of the plaintiff to execute the sale deed, under the sale deed dated:25.01.2006, 2nd defendant would not derive right, title and interest over the suit property. Therefore the katha, assessment and tax paid receipts which were made on the 74 OS.25150/2009 basis of Ex.D.8 Sale Deed will not help the defendants to prove their case that, by virtue of Ex.D.8 Sale deed, 2 nd defendant has become absolute owner of the suit property. In view of my afore said findings, I hold that, plaintiff by examining himself as PW1, his mother as PW2 & his aunt as PW3 and by eliciting admissions from DW1 has proved that, 1st defendant by playing fraud on him has created Ex.D.1 & D2, the illegal documents and on the basis of the said illegal documents, to knock off the suit property, 1st defendant though having no manner of right, title and interest over the suit property or authority to alienate the said property, has executed Ex.D.8 Sale deed dated:25.01.2006 in the name of his wife, the 2 nd defendant. Therefore the said sale deed would not convey the right, title and interest of the suit property in favor of 2 nd defendant and thus it is not valid and binding on plaintiff. On the other hand, defendants failed to prove that, 1st defendant purchased the suit property from plaintiff for consideration of Rs.1,70,000/ and by receiving consideration amount, plaintiff has executed Ex.D.1 75 OS.25150/2009 Power of Attorney creating interest over the suit property and authorized him to sell the said property. Therefore Ex.D.8 sale deed made by 1st defendant in favor of his wife - the 2 nd defendant is valid sale deed and it is binding on plaintiff. In view of the above, I answer Issue NO.1 & 4 in the AFFIRMATIVE & Issue No.2 & 3 in the NEGATIVE.
53. ADDL. ISSUE NO.1: Defendants contend that, plaintiff has not valued the suit properly and the Court fee paid is insufficient.
54. Initially plaintiff has filed the instant suit for the relief of declaration and consequential relief of injunction. After trial, he amended the plaint and alternatively sought the relief of possession, in case the Court comes to the conclusion that, he is not in possession of the suit property. A perusal of valuation slip would show that, for the relief of declaration and cancellation of Ex.D.8 Sale deed dated:25.01.2006, plaintiff has valued the suit U/Sec.38 of Karnataka Court Fees and Suit 76 OS.25150/2009 Valuation Act (KCF & SV Act). A perusal of Ex.D.8 sale deed would show that, it was made for Rs.3,00,000/. Therefore plaintiff has to pay adverlum court fee of Rs.20,375/. For the relief of Injunction, plaintiff has made valuation at Rs.1,000/ U/Sec.26(c) of KCF & SV Act and paid Court fee of Rs.25/. Thus, as per valuation plaintiff paid Court fee of Rs.20,400/. Therefore having regard to the reliefs sought in the original plaint, the Court fee paid is proper.
55. In the instant case, the main relief is cancellation of Ex.D.8 Sale deed dated:25.01.2006. Therefore the suit is to be valued U/Sec.38 of KCF & SV Act. Accordingly, plaintiff has valued the suit U/Sec.38 of KCF & SV Act.
56. Explanation 2 to Sec.38 of KCF & SV Act says that, in a suit for cancellation of a decree or document and possession of any property, the fee shall be computed as in a suit for possession of such property. Sec.29 of KCF & SV Act deals regarding suit for possession of immovable property otherwise 77 OS.25150/2009 provided in Sec.28 of KCF & SV Act which deals regarding suit for possession U/Sec.6 of Specific Relief Act. Therefore as per Sec.29 of KCF & SV Act, for the relief of possession, Court fee is to be paid on the market value of the suit property. Admittedly, market value of the suit property as mentioned in Ex.D.8 Sale deed i.e., Rs.3,00,000/. On Rs.3,00,000/ the plaintiff paid the Court fee of Rs.20,375/. In view of the above, I hold that, the contention of the defendants that, valuation made by plaintiff for the purpose of Court fee is improper and the Court fee paid is insufficient, is not sustainable. Accordingly, I answer Additional Issue No.1 in the NEGATIVE.
57. ISSUE NO.5 & 6: These 2 issues are interconnected to each other. Therefore to avoid repetition and also for convenience, they are taken together for consideration.
58. In view of my findings on Issues 1 to 4, plaintiff is entitled for the relief of declaration that, Ex.D.8 Sale deed is 78 OS.25150/2009 null and void and it is not binding on him and it has to be cancelled.
59. Admittedly, the suit property is a vacant site. It is settled principle of law that, in respect of vacant site, possession follows title. In view of my finding that, under Ex.D.1 Power of Attorney & D2 Affidavit, 1st defendant would not derive right, title and interest over the suit property, therefore he is not competent to execute Ex.D.8 Sale deed in favor of his wife - the 2nd defendant, hence under Ex.D.8 Sale deed, 2 nd defendant would not derive right, title and interest over the suit property, defendants would have no manner of right, title and interest over the said property. Plaintiff who admittedly purchased the suit property under Ex.P.6(D7) sale deed would continue to remain as owner of the suit property. Therefore as per the judgment of Hon'ble Supreme Court of India in the case of "ANATHULA SUDHAKAR V/S. P.BUCHI REDDY (DEAD) BY LRS", plaintiff the owner of the suit property is deemed to be in possession of said property.
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60. Plaintiff during the course of cross examination at page No.14 has stated that, after execution of Ex.D.8 Sale deed, 2nd defendant is in possession of suit property. In view of the said admission, plaintiff has alternatively sought the relief of possession.
61. While answering Issue No.1 to 4, I have held that, defendants have no manner of right, title and interest over the suit property. In view of my said finding, 2 nd defendant who has no manner of right, title & interest over the suit property cannot protect her possession over the said property. Plaintiff being the owner of the suit property is entitled for possession. In view of the admission of plaintiff that, after Ex.D.8 Sale deed, 2 nd defendant is in possession of the suit property, to avoid future complications and to put a rest to the dispute in controversy between the parties, it is just and necessary to grant the relief of possession of suit property in favor of plaintiff. 80
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62. Plaintiff sought the relief of injunction restraining defendants and their agents from alienating the suit property. In view of my findings on afore said issues, defendants have no manner of any right over the suit property. When such is the case, they cannot alienate the suit property. On the basis of Ex.D.1 Power of Attorney, Ex.D.2 Affidavit and Ex.D.8 Sale deed, if defendants alienate the suit property, it will create further complications, therefore it would be just and necessary to grant the relief of injunction restraining defendants from alienating or executing any documents in respect of suit property. In view of the above, I hold that, plaintiff is entitled for the relief of declaration & cancellation of Ex.D.8 Sale deed, possession of suit property and also Injunction restraining the defendants from alienating and/or executing any documents in respect of suit property. Accordingly, I answer Issue No.5 & 6 in the AFFIRMATIVE.
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63. ISSUE NO.7: In view of my reasons & findings on the above issues, I pass the following:
ORDER Plaintiff's suit is decreed with costs.
It is declared that, Ex.D.8 Sale deed dated:25.01.2006 executed by 1st defendant in favor of 2nd defendant in respect of suit property is null and void and it is not binding on plaintiff and it has to be cancelled.
2nd defendant is directed to handover the possession of the suit property to plaintiff within a month. On her failure, the plaintiff is at liberty to take the possession through Court process.
Defendants are restrained from
alienating or making/executing any
documents in respect of suit property.
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Send the copy of the decree to the Sub
Registrar, Head quarter Subregistrar,
K.R.Puram, Bengaluru for the cancellation of Ex.D.8 Sale deed.
***** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 18 th day of November 2020) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW1 STEVE MACQUEVEN ROBERTS PW2 ZERELDERN MERCY JOSEPH PW3 IRUDYA MARY
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1 Original Sale Deed dated:31.07.1997 Ex.P.2 Encumbrance certificate Ex.P.3 Original pass port of Zereldern Mercy Joseph Ex.P.4 Original SSLC of plaintiff 83 OS.25150/2009 Ex.P.5 Original SSLC of Leo Benjamin Robert Ex.P.6 Certified copy of Sale deed dated:05.02.2003 Ex.P.7 Certified copy of Sale deed dated:25.01.2006 LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
DW1 PATRICK PETER LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 Original General Power of Attorney dated:21.04.2005 Ex.D.2 Original Affidavit dated:21.04.2005 Ex.D.3 Passport of 2nd defendant Salet Mary Ex.D.4 Passport of 1st defendant Patrick Peter Ex.D.5 Endorsement Ex.D.6 Acknowledgement Ex.D.7 Original Sale deed dated:05.02.2003 Ex.D.8 Original Sale deed dated:25.01.2006 Ex.D.9 Property register extract Ex.D.10 & 11 Encumbrance certificates Ex.D.12 Assessment extract Ex.D.13 Tax Demand register extract Ex.D.14 - 22 Tax paid receipts.
(MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)