Bangalore District Court
In Os C.Ramesh vs In Os 1. Gopal on 16 March, 2022
IN THE COURT OF THE IV ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU
(CCH-21)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge & C/c IV ACC & SJ.,
Bengaluru
Dated this the 16 th day of March, 2022
O.S.Nos.25124/2007, 25125/2007,
25127/2007, 25128/2007 and 25129/2007
Plaintiff in OS C.Ramesh
No.25124/2007:- Son of N.Chandrappa,
Aged about 40 years,
Residing at No.27, VI Cross Road,
Sampangiramanagar, Bengaluru
560 027.
[By Sri.J.S-Advocate]
Plaintiff in OS C.Bhaskar
No.25125/2007:- Son of N.Chandrappa,
Aged about 40 years,
Residing at No.27, VI Cross Road,
Sampangiramanagar, Bengaluru
560 027.
[By Sri.J.S-Advocate]
2
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Plaintiff in OS Smt.Lakshmidevamma,
No.25127/2007:- W/o. M.Chandrappa,Aged about
65 years,
Residing at No.27, VI Cross Road,
Sampangiramanagar, Bengaluru
560 027.
[By Sri.J.S-Advocate]
Plaintiff in OS N.Chandrappa,
No.25128/2007:- Son of L.Narasimhaiah,
Aged about 67 years,
Residing at No.27, VI Cross Road,
Sampangiramanagar, Bengaluru
560 027.
[By Sri.J.S-Advocate]
Plaintiff in OS C.Ramesh
No.25129/2007:- Son of N.Chandrappa,
Aged about 40 years,
Residing at No.27, VI Cross Road,
Sampangiramanagar, Bengaluru
560 027.
[By Sri.J.S-Advocate]
vs.
3
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Defendants in OS 1. Gopal,
No.25124, 25125, Son of Krishnappa,
25127, 25128 & Aged about 52 years,
25129/2007:- 2. Muniraju,
Son of Krishnappa,
Aged about 36 years,
3. Manjunath,
Son of Krishnappa,
Aged about 29 years,
All are Residing at Kudlu Village,
Singasandra Post,
Bengaluru 560 068
[By Sri.MSS-Adv]
Date of OS No.25124/2007 17.01.2007
Institution of
OS No.25125/2007 17.01.2007
suit:
OS No.25127/2007 17.01.2007
OS No.25128/2007 17.01.2007
OS No.25129/2007 17.01.2007
Nature of the
Suit (Suit for
Pronote, Suit for Injunction Suits
Declaration and
Possession, Suit
for Injunction,
etc.):
4
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Date of OS No.25124/2007 18.06.2008
Commencement OS No.25125/2007 18.06.2008
of recording of OS No.25127/2007 18.06.2008
evidence: OS No.25128/2007 18.06.2008
OS No.25129/2007 18.06.2008
Date on which
the Judgment
was pronounced: 16.03.2022
Total Duration:
Years Months Days
OS No.25124/2007 15 01 29
OS No.25125/2007 15 01 29
OS No.25127/2007 15 01 29
OS No.25128/2007 15 01 29
OS No.25129/2007 15 01 29
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
& C/c IV ACC & SJ.,Mayo Hall,
Bengaluru.
5
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
COMMON JUDGMENT
Plaintiff in OS No.25124/2007, OS No. 25125/ 2007,
OS No.25127/2007, OS No.25128/2007 and OS No.
25129/2007, have sought decree of Permanent Injunctions
to restrain the defendants from interfering with the
peaceful possession and enjoyment of the suit schedule
property and also to restrain the defendants from creating
any fraudulent conveyance deed by suppressing the sale
effected in favour of the plaintiff in respect of the suit
schedule property and also for mandatory injunction
directing the defendants to hand over the vacant
possession of the property by dismantling and removing
the compound wall put up therein by the defendants and
for costs.
6
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
The Defendants are common in both the suits. For
the sake of convenience common judgment is being
passed in all the above suits.
2. Brief facts of the case of the Plaintiff in OS No.
25124/2007, OS No.25125/2007, OS No.25127/2007, OS
No.25128/2007 and OS No.25129/2007 in common are as
below:-
Property bearing Survey Number-42 situated at
Aralukunte village, Begur Hobli, Bengaluru South Taluk
measuring 1 Acre 16 guntas originally belonged to
Krishnappa S/o Venkatappa who acquired the same by
virtue of partition effected between himself and his
brother, who in turn formed a Layout in the said land
7
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
during the year 1988, Out of the layout, site no.21 which is
the suit schedule property in OS No. 25124/2007 was sold
to Smt.Lakshmidevamma under a Sale Agreement and
Power of Attorney dtd. 14.12.1988; Site No.26 which is the
suit schedule property in OS No.25125/2007 was sold to
Smt.C. Bharathi under a sale agreement and Power of
Attorney dtd. 14.12.1988; Site Nos.22, 28, which are the
suit schedule properties in OS No.25127/2007 was sold to
N.Chandrappa under a sale agreement and Power of
Attorney dtd.14.12.1988; Site No.20 which is the suit
schedule property in OS No.25128/2007 was sold to
C.Ramesh under a sale agreement and Power of Attorney
dtd. 14.12.1988 and Site No.27 which is the suit schedule
property in OS No.25129/2007 was sold to Sri.N.
Chandrappa under a sale agreement and Power of
8
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Attorney dtd.14.12.1988. Plaintiffs purchased the
respective suit schedule property under a Regd. Sale Deed
dated.30.03.1995. During September 1996 original owners
from the side of the second wife's family put forth a claim
and accordingly an agreement was entered into on
9.9.1996 in settling all the claims of them with regard to
the plaintiffs and other purchasers. On 26.07.2004 katha
has been effected in the name of respective plaintiffs by
Bommanahalli Nagara Sabha. Plaintiffs have also paid
taxes to the concerned authorities. Plaintiffs have paid
betterment charges. That the defendants are the children
of Krishnappa, who sold the suit property in favour of
plaintiffs. In the layout formed by Krishnappa they have
also retained some portions of the property towards the
share of first wife as well as her son and second wife as
9
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
well as her children and in all 17 sites were sold to
different purchasers i.e. site Nos.28 to 34 retained for the
first wife's family including the first defendant. Right from
the date of purchase, the plaintiffs are in possession and
enjoyment of their respective suit schedule properties.
Though the defendants have no manner of right, title,
interest and possession over any portion of the suit
schedule properties, they started threatening the plaintiffs
by interfering with their possession over the suit schedule
property on 3.1.2007. Further, in the suits this court was
pleased to issue an ad-interim order of status quo which
came to be confirmed by the High Court of Karnataka,
Bengaluru. But, the defendants taking advantage of the
pendency of the suit ventured to dump waste material in
the layout and a complaint in that regard has been lodged
10
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
before HSR Layout Police Station on 5.1.2009 and also to
the local authorities who intervened and removed the
blockage and also got tarred 20 feet width road. On
09.3.2011 plaintiffs reliably came to know that the
defendants started construction activities in site nos. 20 to
22 apart from putting up compound wall in site nos. 17 to
21 and 23 to 28 and also put up temporary zinc sheet
sheds in sits nos. 5 to 16 apart from dumping scarp
materials on the sites by blocking the entrance of 25 feet
road apart from utilizing some portions as cow shed. Since
the defendants violated the court order, plaintiff was
inclined to initiate contempt proceedings before the High
Court of Karnataka, Bengaluru in which an observation was
made to the plaintiffs to approach the trial court in the
pending suit. Hence, a court commissioner was appointed
11
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
who submitted a report in the suit. On these grounds, the
plaintiffs have sought the reliefs against the defendants.
3. The Defendants 1 to 3 who are common in both
the suits have filed written-statement and addl. Written
statement and contested the suit.
4. Brief facts of the written-statement and Addl.
Written statement of defendants in common are as
under:-
Defendants admit the land in question belonged to
Krishnappa, however, they denied that there was layout
formed and sites were sold and suit schedule properties
are in existence. It is also stated that Krishnappa and his
children have no independent right to enter into any
12
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Agreement of Sale or to execute the Power of Attorney in
the name of plaintiff or in the name of any other persons
in respect of land bearing Survey Number-42 of
Aralakunte village. It is stated that as on the date of the
Sale Deed there was no house constructed and even today
no house is in existence. All the revenue records stand in
the name of one Chinnappa @ Yallappa. When the suit
schedule property is not in existence, sale deeds relied
upon by the plaintiffs to prove the possession of the same
will not help them in any manner. There was a litigation
pending between the first defendant, their father in OS
No.8415/1996 in the court of City Civil Court, Bengaluru
and same was concluded by way of compromise on
27.11.2006. Thereafter their father died on 07.12.2006 and
in the said compromise they have filed a sketch showing
13
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
how they have partitioned the land bearing Survey
Number-42 and other properties and they have been in
possession and enjoyment of the same. Plaintiffs are not
in possession of the said lands or any portion of land
bearing Survey Number-42. The alleged receipts obtained
from the Panchayath are all created documents for the
purpose of the case. As per the revenue records it has
been continued as agricultural land and the same is not
converted till today. The alleged Power of Attorney given to
the plaintiffs and other parties in the connected suits have
been cancelled by the first defendant and their father
Krishnappa and they have no authority to deal with the
same in any manner. The suits are not maintainable for the
simple reason that as on the date of filing the suits,
plaintiffs are not in possession of the suit schedule
14
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
property. Hence the suit is liable to be dismissed. That the
plaintiffs have not sought for any declaratory reliefs as
regards their title over the suit schedule properties. In the
absence of any prayer to recover possession of the suit
property, mere prayers for mandatory or permanent
injunction will not survive and the same cannot be granted.
On these grounds, defendants have prayed for dismissing
the suit of the plaintiffs with costs.
5. In support of the plaintiff's case, in all the suits,
plaintiff in OS No.25128/2007 got examined himself as
PW.1 and Plaintiff in OS No.2525124/2007 got examined
as PW.2 and got marked 118 documents as Exs.P.1 to
Ex.P.118. On behalf of the defendants, defendant No.1 got
examined as DW.1 and got marked 78 documents as Ex.D.1
15
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
to D.78. Court commissioner has been examined as CW.1
and Ex.C.1 to C.12 got marked.
6. Heard arguments and also perused written
arguments filed by the plaintiffs.
Learned counsel for the plaintiffs has relied upon
the following decisions:-
1) AIR 1969 Supreme court 73
2) 2012 SCC Online Delhi 2937
3) (2008) 4 SCC 594
4) (2019) 17 SCC 692
5) 2021 SCC Online SC 675
6) (1995) 6 SCC 50
7) (1997) 3 SCC 443
8) (1994) 2 SCC 266
9) (1996) 4 SCC 622
10)1975 SCC Online Mad. 73
11) 1985 SCC Online Cal. 146
16
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
12) 2016 SCC Online Hyd. 490
13) 2012 (3) SCALE 550
Learned counsel for the defendants has relied upon
the following decisions:-
1) ILR 2014 Karnataka 4716
2) ILR 2016 Karnataka 2670
3) AIR 2008 Supreme Court 2033
4) AIR 2018 (SUPP) SC 1159
5) CA. 6989-6992/2001
6) AIR 2021 SC 4923
7) 2021(2) Karnataka L.R. 477 (SC)
8) AIR 1992 Bombay 149.
7. Following Issues and Addl Issues have been
framed in OS No.25124/2007:-
17
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
18
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
8. Following Issues and Addl.issues have been
framed in OS No.25125/2007:-
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
19
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
9. Following Issues and Addl.issues have been
framed in OS No.25127/2007:-
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
20
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
10. Following Issues and Addl.issues have been
framed in OS No.25128/2007:-
21
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
22
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
11. Following Issues and Addl.issues have been
framed in OS No.25129/2007:-
Issues
1) Whether plaintiff proves he is in
lawful possession over the suit property?
2)Whether plaintiff proves interference
by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
defendants have illegally put up Zinc
23
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Sheet Shed and stored scrap material in
the suit property?
2) Whether the defendants prove that
the suit is barred by limitation?
3) Whether the defendants prove that
the court fee paid is insufficient?
4) Whether the plaintiff is entitled for
mandatory injunction as prayed for?
12. For the reasons stated in the subsequent
paragraphs, I answer above Issues as follows:-
ISSUE No.1 in OS
Nos.25124, 25125,
25127, 25128 &
25129/2007 :- In the affirmative
ISSUE No.2 in OS
Nos.25124, 25125,
25127, 25128 &
25129/2007 :- In the affirmative
24
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
ISSUE No.3 in OS
Nos.25124, 25125,
25127, 25128 &
25129/2007 :- In the affirmative
Addl. Issue No.1
in OS Nos.25124,
25125, 25127,
25128 & 25129/2007 :- In the affirmative
Addl. Issue No.2
in OS Nos.25124,
25125, 25127,
25128 & 25129/2007 :- In the negative
Addl. Issue No.3
in OS Nos.25124,
25125, 25127,
25128 & 25129/2007 :- In the negative
Addl. Issue No.4
in OS Nos.25124,
25125, 25127,
25128 & 25129/2007 :- In the affirmative
Issue No.4 in OS
Nos.25124, 25125,
25127,25128 &
25129/2007 :- As per final order for
the following:-
25
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
REASONS
13. Issue No.1 and Addl.Issue No.1 in OS No.
25124/2007, 25125/2007, 25127/2007, 25128/2007
and 25129/2007:- Suit schedule properties in these suits
are Site No.21 in OS No.25124/2007, Site No.26 in OS
No.25125/2017, Site Nos.22 and 28 in OS No.25127/2007,
Site No.20 in OS No.25128/2007 and Site No.27 in OS
No.25129/2007. OS No.25124/2007 and OS No.25129/2007
have been filed by Ramesh.C., OS No.25125/2007 has been
filed by Bhaskar.C., OS No.25127/2007 has been filed by
Smt.Lakshmidevamma and OS No.25128/2007 has been
filed by Chandrappa.N. Above said Ramesh.C. and Bhaskar
C are the sons of above said Smt.Lakshmidevamma and
N.Chandrappa. As such, Smt.Lakshmidevamma is the wife
of Chandrappa.N. The suit schedule sites are said to be
26
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
carved out in the land bearing Survey Number- 42
situated at Arulukunte village, Begur Hobli, Bengaluru
South Taluk admeasuring 1 Acre 16 guntas. Formation of
the said sites in the said land is not admitted by the
Defendants. However, it is an admitted fact that the land
bearing Survey Number- 42 measuring 1 Acre 16 guntas
belonged to the father of the defendants 1 to 3 namely
Krishnappa and he had acquired the same under a
Partition Deed between himself and his brothers.
Krishnappa's brother Venkatappa is said to have had
purchased larger extent in Survey Number- 42 on behalf
of the joint family and in the partition above said extent of
1 Acre 16 guntas is said to have fallen to the share of
defendants' father Krishnappa. This is actually not in
dispute. Plaintiffs claim is that the sites mentioned above
27
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
were acquired under the Sale Agreement and General
Power of Attorney executed by the defendants father
Krishnappa and his family members on 14.12.1988.
Actually it is claimed that Site No.21 was purchased in the
name of Smt.Lakshmidevamma (plaintiff in OS No.
25127/2007) under a Sale Agreement and GPA executed
by Krishnappa and his family members and then on the
basis of the said General Power of Attorney she has
executed Regd. Sale Deed in favour of of her son
C.Ramesh on 30.03.1995. Similarly, Site No.26 is said to
have been purchased by C.Bharathi under a Sale
Agreement and General Power of Attorney dtd.
14.12.1988 and thereafter she said to have executed a
Regd. Sale Deed dtd. 30.03.1995 in favour of C Bhaskar
who is the plaintiff in OS No.25125/2017. Site Nos.22 and
28
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
28 in OS No. 25127/2007 are said to have been purchased
by N.Chandrappa under a Sale Agreement and General
Power of Attorney dtd. 14.12.1988 from Krishnappa and
his family members and then on the basis of the said
General Power of Attorney he said to have executed a
Regd. Sale Deed dated. 30.03.1995 in favour of of his
wife Smt.Lakshmidevamma who is the plaintiff in OS
No.25127/2007. Site No.20 in OS No.25128/2007 is said to
have been purchased by C.Ramesh under a Sale
Agreement and General Power of Attorney dtd. 14.12.1988
and then by virtue of the said General Power of Attorney
he said to have executed Regd. Sale Deed dated.
30.03.1995 in favour of his father N.Chandrappa who is
the plaintiff in OS No.25128/2007. Site No.27 is said to
have been purchased by C.Bhaskar under a Sale
29
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Agreement and General Power of Attorney dtd.
14.12.1988 and thereafter he said to have executed a
Regd. Sale Deed dated.30.03.1995 in favour of his brother
C.Ramesh who is the plaintiff in OS No.25129/2007 on the
strength of the said General Power of Attorney in his
favour.
14. All these five suits have been clubbed and
common evidence has been recorded. On behalf of the
plaintiffs N.Chandrappa has been examined as PW.1 and
C.Ramesh has been examined as PW.2. Plaintiffs have got
marked Ex.P.1 to 118 on their behalf. Among the same,
documents pertaining to site No.21 in OS No.25124/2007
have been marked as per Ex.P.87 to 106, documents
pertaining to site No.26 in OS No.25125/2007 have been
marked as per Ex.P.25 to P.43 and also Ex.P.91 Affidavit is
30
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
commonly claimed in respect of said site as well. In
respect of Site Nos.22 to 28 in OS No.25127/2007, the
documents have been marked as Ex.P.46 to 49 and Ex.P.6,
Ex.P.50 to 64 and also Ex.P.91 affidavit is commonly
claimed even in respect of this site. In respect of Site No.20
in OS No.25128/2007 Ex.P.67 to 83 have been got marked
and again Ex.P.91 is commonly claimed in respect of this
site as well. In respect of Site No.27 in OS No.251294/2007
Ex.P.3 to 22 have been got marked, and in addition to the
same, Ex.P.91 affidavit is also commonly claimed in respect
of this site as well. In fact, in the written arguments
submitted by the plaintiff's counsel, documents marked for
the above said suits have been separately tabulated for the
convenience. Same is extracted here as below:-
31
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Sale Transaction pertaining to Site No.21 in OS No.25124/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and Lakshmidevamma Sale Agreement Ex.P.87
family
14.12.1988 Krishnappa and Lakshmidevamma GPA Ex.P.88
family
30.03.1995 Krisnappa & Family C.Ramesh Sale Deed Ex.P.89
through GPA Holder
Lakshmidevamma
09.09.1996 Krishnappa & C.Ramesh Agreement Ex.P.6
Family (Except (All site owners) (Settlement
defendant No.1) Agreement)
24.10.1996 Krishnappa & C.Ramesh Affidavit Ex.P.90
Family (Except
defendant No.1)
28.10.1996 Krishnappa Plaintiff and Affidavit Ex.P.91
other sites pertaining to 1
owners to 28
Revenue and other allied documents relied on by the plaintiffs
pertaining to site No.21 in OS No.25124/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.92
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.93
under the Self Assessment Scheme along with the Tax paid receipts for to 104
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.105
Encumbrance Certificate fro 1.4.2004 to 06.01.2007 Ex.P.106
32
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Sale Transaction pertaining to Site No.26 in OS No.25125/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and C.Bharathi Sale Agreement Ex.P.25
family
14.12.1988 Krishnappa and C.Bharathi GPA Ex.P.26
family
30.03.1995 Krisnappa & Family C.Bhaskar Sale Deed Ex.P.27
through GPA Holder
Lakshmidevamma
09.09.1996 Krishnappa & C.Bhaskar Agreement Ex.P.6
Family (Except (All site owners) (Settlement
defendant No.1) Agreement)
24.10.1996 Krishnappa & C.Bhaskar Affidavit Ex.P.28
Family (Except
defendant No.1)
28.10.1996 Krishnappa Plaintiff and Affidavit Ex.P.91
other sites pertaining to 1
owners to 28
Revenue and other allied documents relied on by the plaintiffs
pertaining to site No.26 in OS No.25125/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.29
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.30
under the Self Assessment Scheme along with the Tax paid receipts for to 41
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.42
Encumbrance Certificate fro 1.4.2004 to 06.01.2007 Ex.P.43
33
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Sale Transaction pertaining to Site No.22 and 28 in OS
No.25127/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and N.Chandrappa Sale Agreement Ex.P.46
family (Deposition)
14.12.1988 Krishnappa and N.Chandrappa GPA Ex.P.47
family
30.03.1995 Krisnappa & Family Lakshmidevamma Sale Deed Ex.P.48
through GPA Holder
C.Bharathi
09.09.1996 Krishnappa & Lakshmidevamma Agreement Ex.P.6
Family (Except (All site owners) (Settlement
defendant No.1) Agreement)
24.10.1996 Krishnappa & Lakshmidevamma Affidavit Ex.P.49
Family (Except
defendant No.1)
28.10.1996 Krishnappa Plaintiff and Affidavit Ex.P.91
other sites pertaining to 1
owners to 28
Revenue and other allied documents relied on by the plaintiffs
pertaining to site No.22 & 28 in OS No.25127/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.50
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.51
under the Self Assessment Scheme along with the Tax paid receipts for to 62
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.63
Encumbrance Certificate fro 1.4.2004 to 06.01.2007 Ex.P.64
34
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Sale Transaction pertaining to Site No.20 in OS No.25128/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and C.Ramesh Sale Agreement Ex.P.67
family
14.12.1988 Krishnappa and C.Ramesh GPA Ex.P.66
family
30.03.1995 Krisnappa & Family N.Chandrappa Sale Deed Ex.P.68
through GPA Holder
Lakshmidevamma
09.09.1996 Krishnappa & N.Chandrappa Agreement Ex.P.6
Family (Except (All site owners) (Settlement
defendant No.1) Agreement)
24.10.1996 Krishnappa & N.Chandrappa Affidavit Ex.P.69
Family (Except
defendant No.1)
28.10.1996 Krishnappa Plaintiff and Affidavit Ex.P.91
other sites pertaining to 1
owners to 28
Revenue and other allied documents relied on by the plaintiffs
pertaining to site No.20 in OS No.25128/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.70
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.71
under the Self Assessment Scheme along with the Tax paid receipts for Ex.P. 82
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.83
35
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Sale Transaction pertaining to Site No.27 in OS No.25129/2007
Date Executed by In favour of Nate of Exhibit
document
14.12.1988 Krishnappa and C.Bhaskar Sale Agreement Ex.P.3
family
14.12.1988 Krishnappa and C.Bhaskar GPA Ex.P.4
family
30.03.1995 Krisnappa & Family C.Ramesh Sale Deed Ex.P.5
through GPA Holder
Lakshmidevamma
09.09.1996 Krishnappa & C.Ramesh Agreement Ex.P.6
Family (Except (All site owners) (Settlement
defendant No.1) Agreement)
24.10.1996 Krishnappa & C.Ramesh Affidavit Ex.P.7
Family (Except
defendant No.1)
28.10.1996 Krishnappa Plaintiff and Affidavit Ex.P.91
other sites pertaining to 1
owners to 28
Revenue and other allied documents relied on by the plaintiffs
pertaining to site No.27 in OS No.25129/2007
Particulars of document Exhibit
Assessment Register issued by the Bommanahalli Nagarasabha, Ex.P.82
Bengaluru
Application submitted by the plaintiff for the payment of the taxes Ex.P.9 to
under the Self Assessment Scheme along with the Tax paid receipts for P.20
the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08
Encumbrance Certificate fro 1.4.1989 to 24.08.2004 Ex.P.21
Encumbrance Certificate fro 1.4.2004 to 06.01.2007 Ex.P.22
36
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
15. Defendants claim that their father Krishnappa
and themselves have not executed any Sale Agreement
and General Power of Attorneys and in the same breath
they claim that the Power of Attorney given to the plaintiffs
and others parties mentioned above have been canceled
by the defendant No.1 and his father Krishnappa and
hence they had no authority to deal with the same in any
manner. They have also contended that Krishnappa and his
children have no independent right to enter into any
Agreement or to execute General Power of Attorney and
there was no layout formed in the land bearing Survey
Number-42 as claimed by the plaintiffs and therefore the
suit schedule sites are not in existence and sale deeds
registered in the name of the plaintiffs are in respect of
non existing property and as on the date of the Regd. Sale
37
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Deed and also on the date of filing the written statement
there were no houses in existence in the suit property.
Plaintiffs in the above suits might have misused the
signatures of late Krishnappa and Defendants 2 and 3. The
Affidavit claimed by the plaintiffs have not been sworn to
by them. Plaintiffs were not in possession of the suit
property as on the date of the suit and there was a suit
between the defendant No.1 and his father Krishnappa in
OS No.8415/1996 in the Court of Addl. City Civil Court,
Bengaluru and the same was compromised on 07.12.2006
and they have partitioned the said land and other lands as
per the Sketch annexed to the compromise petition filed in
the said suit. Defendants claim that even to this day the
suit property is agricultural land and plaintiffs have filed a
false suit without possession of the suit land.
38
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
16. It is the case of the plaintiffs that after instituting
the suits, defendants have put up the construction in the
suit property and therefore the plaintiffs who had
originally filed the suit for permanent injunction have got
amended the plaint and sought the relief of mandatory
injunction for removal of the construction and for
possession by contending that even though interim order
of injunction was in force and later same had been
modified into an order of status quo by the High Court of
Karnataka, Bengaluru, in violation of the same, the
Defendants have put up said constructions during the
pendency of the suit. Defendants have filed additional
written statement denying the constructions of any
building after institution of the suit.
39
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
17. On behalf of the defendants defendant No.1 has
got himself examined as DW.1 and got marked Ex.D.1 to
D.78 documents. Details of the said documents are as
below:-
Ex.D.1 Copy of the Memorandum of appeal in RFA
No.1022/1997
Ex.D.2 Postal acknowledgment
Ex.D.3 Residence Address
Ex.D.4 Signature acknowledgment
Ex.D.5-6 RTC
Ex.D.7-8 Mutation Extracts
Ex.D9 Tax paid receipt
Ex.D.10-11 Encumbrance Certificates
Ex.D.12-14 R.T.C. Extracts
Ex.D.15 Certified copy of the IA filed in OS No.8415/1996
Ex.D.16 Decree in OS NO.8415/1996
Ex.D.17 Layout Plan
Ex.D.18 Encumbrance Certificate
Ex.D.19 Mutation Register Extract
Ex.D.20-21 R.T.C. extracts
Ex.D.22-23 Tax paid receipts
40
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Ex.D.24 Decree in OS No.8415/1996
Ex.D.25 Encumbrance Certificate
Ex.D.26 Tax paid receipt
Ex.D.27 Affidavit of Krishnappa
Ex.D.28-30 Copies of notices
Ex.D.31-35 Postal receipts
Ex.D.36-38 Postal acknowledgments
Ex.D.39-43 Copies of caveat petition
Ex.D.44 Certified copy of the Order sheet in RFA
No.1022/2007
Ex.D.45 Death Certificate of Krishna Reddy
Ex.D.46-50 Revocation Letters
Ex.D.51 Certified copy of the Final Decree in OS
No.8450/1996
Ex.D.52 Encumbrance Certificate
Ex.D.53 Notice issued to Ramesh
Ex.D.54 Form-B property register Extract
Ex.D.55 Tax paid receipts
Ex.D.56-57 Certified copy of the final decree in OS
NO.8415/1996 dtd. 14.02.2007
Ex.D.58 Record of Rights in respect of Survey Number- 42/1
Ex.D.59 Katha Certificate. Dtd. 27.12.2013
Ex.D.60 Form'B' property register
Ex.D.61 Katha registration notice dtd. 18.12.2013
41
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Ex.D.62 Tax paid receipts
Ex.D.63 Final Decree passed in OS No.8415/1996
dtd.14.02.2007
Ex.D.64 R.T.Cs
Ex.D.65 Encumbrance Certificate
Ex.D.66-70 Certified copy of Form-A along with IPO Counterfoil
Ex.D.71-75 Endorsements issued by BBMP
Ex.D.76 Certified copy of the written statement in OS
No.8415/1996
Ex.D.77 Certified copy of the deposition of RW. 1 in OS
No.8415/1996
Ex.D.78 Certified copy of the deposition of P.W.1 in OS
No.8415/1996
Since it is an admitted fact that earlier the suit land
bearing Survey Number- 42 belonged to the defendants
father Krishnappa and he had acquired the same under a
Partition Deed between himself and his brothers, above
said documents produced by the defendants are not of
much consequence. The R.T.Cs. have been produced by the
defendants to show that the suit property had been
42
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
entered in their name and the same is as per the Decree
granted in the Partition suit in OS No.8415/1996. They have
also produced certified copy of the Decree in the said suit.
Further, they have produced one affidavit which is said to
have been sworn to by Krishnappa as per Ex.D.27 and
copies of the legal notices as per Ex.D28 to 30, revocation
deeds of General Power of Attorney as per Ex.D.48 to 50,
copy of the caveat petition, final decree and pleading in OS
No.8415/1996 as per Ex.D.16. They have produced layout
plan in respect of land bearing Survey Number- 42/P5 as
per Ex.D17. Ex.D28 to 30 are the copies of the legal notices
dtd. 23.03.1995 issued by defendant No.1 to the plaintiffs
Lakshmidevamma and C.Bhaskar and also latter's sister
C.Bharathi. Under the said notices, defendants claim that
43
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
they have canceled the General Power of Attorney that
had been given. The said notices read as below:-
"Under instructions from my client Sri K. Gopala, son
of Krishnappa, residing at No.5, I Cross, Srishaila Nilaya,
Venkataramaiah Layout, Ramamurthynagar, Main Road,
Doddabanaswadi, Bangalore 43, I cause this notice to you
as follows:-
1. My client informs me to state that at the instance of
his father, my client's aunt viz., Papamma and her six
children have executed a Power of Attorney on 14/'16-12-
1998 touching the site No. 21 of Aralakunte village, Begur
Hobli, Bangalore South Taluk, formed in Survey No.42
measuring East to West 30 feet and North to South 40
feet to manage and supervise the same.
2. My client further states that he was under the terms
and dictates of his father was forced to sign the said
power of of attorney among others jointly. He further
states that his sisters viz., Bharati, Roopa and brother
Manjunatha were the minor as on that date, and they
were not duly represented by natural guardian. My
client's brother and sisters being minor shad no
contractual capacity. hence, they can't be termed as
executants of the documents stated supra. The so called
minors including my client were under the terms and
dictates of their father. The signature of my client and his
sister Rukkamma and step mother Papamma were
obtained by exercising the undue influence
My client further states that is there is no consensuses
44
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
ad-idem to execute the general power of attorney in your
favour to act as an agent of my client to carry out the
work as stated in the General Power of Attorney stated
supra, touching the property mentioned therein. That as
per my client's instructions and as per the grounds stated
above, I hereby revoke the General Power of Attorney
executed in your favour on 14/16-12-1988 touching the
site No. 21 formed in Survey No. 42 Aralakunte village,
Begur Hobli Bangalore South Taluk.
Therefore, I hereby revoke the General Power of
Attorney executed in your favour and further call upon
you not to act on the strength of the Power of Attorney
dated 14/16-12-1988, touching the aforesaid site No. 20,
18 inspite of this notice, if you proceeded further, your
actions will not be bind on my client in any manner".
With similar content, notice has been issued in
respect of other suit sites to the respective purchasers. It
is the contention of the plaintiffs counsel that the above
said legal notices issued by defendant No.1 itself shows
that the General Power of Attorney documents produced
by the plaintiffs had indeed been executed by Krishnappa
and his family members. In fact, the contents of the above
45
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
legal notices and also averments in the written statement
show that the same admit the fact that Krishnappa and his
family members had executed Sale Agreements and
General Power of Attorneys in question. But, the defendant
No.1 claims that he was forced to sign the said Power of
Attorney jointly with other family members. He further
contends in the legal notice that his sisters Bharathi, Roopa
and brother Manjunath were minors as on that date and
they were not duly represented by their natural guardian
and therefore, the General Power of Attorney claimed by
the plaintiffs are illegal. Hence the above said contention of
the defendants in the written statement and also legal
notices at the outset show that Krishnappa and his family
members had executed the Sale Agreements and General
Power of Attorney as claimed by the plaintiffs. Now
46
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
burden rests on the defendants to prove that the Power of
Attorney was obtained by coercion. Therefore, the
evidence will have to be verified to find out if the
defendant No.1 has proved that his signatures to the
General Power of Attorney in question were obtained
forcibly by his father. Further, said contention of the
defendants in the legal notice implies that defendants
father Krishnappa had voluntarily executed the General
Power of Attorney and it is the case of the defendants that
only defendant No.1 was forced by his father to sign the
GPA jointly along with other family members. Hence, from
the contention taken in the legal notices of the defendants,
it is clear that the defendants father had voluntarily
executed the General Power of Attorney. Now, it has only
to be verified whether the signatures of the defendant
47
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
No.1 had been forcibly obtained to the General Power of
Attorneys in question.
18. Ex.D.28 to 30 have been issued by defendant
No.1 alone. The plaintiffs have contended that defendant
No.1's father and his brothers and sisters had not
authorized him to issue the said legal notices. In view of
the said contention, defendants have produced Ex.D.27
affidavit purportedly to have been executed on 25.02.1995
to show that his father and other family members have
authorized him to cancel the Power of Attorney documents
in question. Plaintiffs counsel has argued that the same
has been concocted in order to fill up the lacuna in the
legal notices wherein it is clearly mentioned that defendant
No.1 alone has issued the same to the plaintiffs. In this
backdrop, I proceed to consider whether the General
48
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Power of Attorneys on the basis of which the Sale Deeds
have been got registered had been duly canceled by the
defendants and their family members prior to the plaintiffs
obtained the Regd. Sale Deeds on the strength of the said
General Power of Attorneys. Of-course, plaintiffs counsel
argues that the Sale Agreements and General Power of
Attorney had been executed by receiving the sale
consideration and therefore the General Power of Attorney
in question were coupled with interest and hence the
defendants could not have canceled the General Power of
Attorneys. General Power of Attorneys were irrevocable
and the notices issued as per Ex.D.28 to 30 have no value
in the eye of law. As a matter of fact Ex.D.46 to 50 are the
Deeds of Revocation of General Power of Attorney
unilaterally executed by defendant No.1 on 23.03.1995.
49
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Plaintiffs have got sale deeds marked at Ex.P.5, 27, 48, 68
and 89 on 30.03.1995 i.e., subsequent to the legal notices
marked at Ex.D.28 to 30 and Deeds of Revocation of GPA
marked at Ex.D.46 to 50. Of course, when the plaintiffs
obtained the Regd. Sale Deed dated. 30.03.1995
defendants father was still alive and defendants have
produced the death certificate of their father as per
Ex.D.45 which shows that he passed away on 07.12.2006
which is just prior to filing of this suit.
19. In this connection, evidence of Defendant No.1/
D.W.1 requires to be noted. During cross examination on
pages-8 to 10, he admits that he had issued Ex.D.3 notice
to the plaintiffs herein and in all to 13 persons canceling
the General Power of Attorney that had been executed in
their favour. At page-10 of his cross examination, he states
50
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
that since some one inquired him about one Krishnappa
and handed over the Power of Attorney stated to have
been executed by the said Krishnappa, he handed over the
copy of the said G.P.A. to his advocate and asked him to
issue notice to the plaintiffs. On one hand he states that he
and his father Karishnappa and other members together
got the G.P.A. canceled and on the other hand, he states
that some one enquired him about the General Power of
Attorney executed by Krishnappa and handed over the
copy of the same and hence he in turn gave it to his
counsel and got the GPA canceled. Defendant No.1/D.W.1
has not made any effort to explain what force was used by
his father to make him to affix his signatures to the Sale
Agreement and GPAs. in question. Instead he has sought
to give dubious explanation for the same by stating that he
51
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
issued notice because someone inquired with him about
the General Power of Attorney executed by Krishnappa
and handed over a copy of the same to him. If his father
had forced him to affix his signature to the documents and
there was a suit for partition filed by him against his father
then how they together issued the legal notice canceling
the General Power of Attorney demands an answer, that
too, when in the said suit defendant No.1 to 3 and their
father and other family members have all entered into a
compromise and obtained a compromise decree.
Importantly, burden is on the defendants to prove that the
signatures of the GPA had been obtained by forcing to affix
the signatures. But, defendants have not produced any
plausible or cogent evidence to accept the said contention.
52
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
20. When that is so, in the cross examination,
Defendant No.1/D.W.1 states that signature in Ex.P. 3 and 4
Sale Agreements and General Power of Attorney dtd.
14.12.1988 appears to be his signatures, but he has not
affixed said signatures. His said statement can be found at
pages-14 and 15 of his cross examination. But, thereafter,
on page-17 of his cross examination he admits that
Ex.P.3(a) to (e) are his signatures in Ex.P.3 and then states
that he cannot identify his father's signature. Again he
admits that in Ex.P.4, he has affixed signature as per
Ex.P.4(a) to (d). His earlier statements on page-14 and 15 is
as follows:-
"The signatures in Ex.P.3 and Ex.P.4 appears to be
mine. But I have not signed Ex.P.3 and Ex P.4. It is not
true to suggest that myself, my father, Rukamma,
Papamma and Rajamma have signed Ex.P.3 and Ex.P.4. It
is not true to suggest that my signature in Ex.P.3 are
Ex.P.3(a) to Ex.P.3(d). It is not true to suggest that my
signatures in Ex.P.4 are Ex.P.4(a) to Ex.P.4(d)".
53
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
After denying his signature in Ex.P.3 and 4 on pages-
14 and 15, when his cross examination was resumed on
the adjourned date he has made admission on pages-17 to
19 as below:-
"Signatures Ex.P.3(a), Ex.P.3(6), Ex.P.3(c), Ex.P.3(d)
and Ex.P.3(e) are my signatures. I cannot identify the
signature of my father. It is not true to suggest
that my family members have signed Ex.P.3. In Ex.P.4
Ex.P.4 (a), Ex P.4(b), Ex.P.4(c) and Ex.P.4(d) are
signatures. I know reading Kannada. In Ex.P25 my
signature in 2nd page is seen and it is Ex.P.25 (a). It is
not true to suggest that the signatures Ex.P.25(b),
Ex.P.25(c) and Ex.P.25(d) are also my signatures in
Ex.P.25. I do not know whether Ex.P.25 has been signed
by my father and other family members. Rukkamma is
my younger sister and Krishnappa is my
father and both of them are not alive. In Ex.P.26 my
signature is in the 3 rd page and my signature in 3rd
page in Ex.P.26 is Ex.P.26(a). It is not true to suggest that
in Ex P.26, Ex P.26(b) and Ex.P. 26(c) are my signatures,
In the last page of Ex.P.26 my signature is found and it
is Ex.P.26(d). It is not true to suggest that myself and
my family members have received Rs. 10,000/- at the
time of executing Ex.P.26. It is not true to suggest that
my members have signed Ex.P.26.
In Ex.P.46 sale agreement I have signed on the 2nd
page and the last page and my signatures are Ex.P.46(a)
Ex.P.46(b). It is not true to suggest that I have
signed on 1" and 3rd page also and Ex.P.46(c) and
54
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Ex.P.46(d) are also My signatures. I do not know
whether my father Krishanappa and other family
have also signed Ex.P.46. I cannot identify the signature
of my father Krishnappa. It is not true to suggest that
myself, my father and my family members
have received Rs 10,000/- at the time of execution of
Ex.P.46 Agreement. In Ex.P.47 power of attorney my
signatures are found in 2nd page and 4th page and my
signatures are Ex.P.47(a) and Ex.P.47(b). It is not true to
suggest that the other signatures in Ex.P.470) and
Ex.P.47(d) on page 1 and 3 are my signatures. Ex.P.67
does not contain my signatures. It is not true to suggest
that Ex.P.67(a), Ex.P.67(b), Ex.P.67(c) and Ex.P.67(d) are
my signatures. In Ex.P.66 my signatures are Ex.P.66(a)
and Ex.P.66(b). It is not true to suggest that Ex.P.66(c)
and Ex.P.66(d) are also my signatures. I do in not know
whether Ex.P.66 and Ex.P.67 documents are signed my
father Krishnappa and other family members".
Defendant No.1/DW.1 has blown hot and cold by denying
his signatures and then admitting the same. Again while
admitting his signatures on other Sale Agreements and
General Power of Attorneys as can be seen from his
evidence culled out above he admits his signatures in some
pages of same document and denies his signatures on
some pages. Again when he was cross examined on page-
55
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
19 with respect to his signature in Ex.P.87 and P.88 Sale
Agreement and General Power of Attorney dtd. 14.12.1988
relating to site No.21 he has denied his signatures. But,
when his admitted signatures as stated in his cross
examination culled out above are compared with his
disputed signatures in Ex.P.87 and P.88 they clearly tally
with each other. In the legal notice he has admitted
affixing his signatures and has stated that he is canceling
the G.P.A. on the ground that his signatures were obtained
forcibly. But, while answering under cross examination he
has prevaricated every now and then by once admitting his
signatures and then denying same at another point. So, it
is very clear that D.W.1/Defendant No.1 is not a credit
worthy person. Burden being on the defendants to prove
that the signatures had been taken forcibly to the
56
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
documents, defendants have not produced any cogent
material before the court to accept the said contention.
On the other hand, evidence above clearly shows that
defendant No.1 has affixed his signatures to all the sale
agreements and General Power of Attorneys dtd.
14.12.1988 executed in favour of the plaintiffs in the
above said suits.
21. Plaintiffs counsel has placed reliance on a
number of decisions to contend that the General Power of
Attorney having had been executed by receiving sale
consideration same were coupled with interest and
executants had no power to revoke the said G.P.As.
Learned counsel for the plaintiffs has placed reliance on
the decisions in Suraj Lamp Industries Vs. State of
Haryana; Hardip Kaur Vs. Kailash and another to
57
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
buttress the point. Learned counsel for plaintiffs has also
relied on section 202 of the Indian Contract Act, 1872 and
Sec. 53-A of the Transfer of Property Act, 1882. Sale
Agreements marked at Ex.P.3, 26, 46, 67 and 87 which are
dated 14.12.1988 show that under the said Sale
Agreements entire sale consideration has been received
by the executants. Under the above said Sale Agreements
in respect of each site sale consideration has been fixed at
Rs.10,000/- and same is shown to have been entirely paid
and received. Said documents have been executed by the
defendants father Krishnappa and his first wife's only son -
defendant No.1, his second wife Papamma and her
children Rukkamma, Rajamma, Muniraju (defendant No.2)
and Manjunatha (Defendant No.3); Bharathi and Roopa.
Among them defendant Nos.2 and 3 and their sisters
58
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Bharathi and Roopa have been shown as minors and they
have been represented by their father Krishnappa in the
said documents. Sale Agreement contain recitals that sites
have been formed in the land bearing Survey Number- 42
of Arulukunte village measuring 1 Acre 16 guntas and in
view of the difficulty faced by them for meeting domestic
necessities, protection of minor children and their
educational expenses they are selling the sites formed in
the layout in the above land. Apart from the same, later in
view of the dispute by the children of the second wife, it is
claimed that another Agreement was entered into on
09.09.1996 as per Ex.P.6. Further Affidavits have been
executed on 24.10.1996 by Krishnappa's 2nd wife Papamma
and her sons-Defendant Nos.2 and 3, Daughters Bharathi
and Roopa. At the time of execution of the affidavits,
59
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
defendants 2 and 3 and Bharathi had become majors and
their sister Roopa was still a minor and she has been
represented by her father Krishnappa. In the said affidavit
they have confirmed that they have sold sites in question
as per Sale Agreement and General Power of Attorneys
executed by them and they have also ratified to the Sale
deeds got registered on the basis of the G.P.As and have
also admitted delivery of vacant possession of the sites to
the purchasers and have stated No objection for change of
Katha in favour of the purchasers under the sale deeds
executed by virtue of the General Power of Attorney.
Defendants 2 and 3 who are the signatories to the Affidavit
have not chosen to enter the witness box to deny their
signatures therein. On the other hand Defendant No.1/
D.W.1 in the cross examination admits to have signed the
60
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Affidavits. In the Affidavit dtd. 24.10.1996 defendant No.1
is not a party. Therefore, I am of opinion that even the
above said affidavits have been proved.
22. In these suits relief of declaration of title has
not been sought and the defendants counsel has
placed reliance on the decision in the case of Anathula
Sudhakara Vs. P.Buchi Reddy (Dead) by L.Rs.
Reported in AIR 2008 S.C.2033 to contend that in the
absence of seeking the relief of declaration of title in
the light of serious dispute regarding the title of the
plaintiff to the suit, the above suit itself is not
maintainable. In fact, plaintiffs counsel has also placed
reliance on the said decision to contend that when the
title on the face of records is clearly established, need
61
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
for seeking declaration of title does not arise and also
if plaintiffs can establish possession of the property
independently, then also need for seeking the relief of
declaration of title, does not arise. Learned counsel for
the plaintiffs has also argued that plaintiffs would be
entitled to protect their possession of the suit property
under section 53A of the Transfer of Property Act as
they had been put in possession by receiving entire
sale consideration and therefore, irrespective of
question of title plaintiffs are entitled to possession of
their sites under the said provision.
23. Learned counsel for defendants has placed
reliance on the decision in U.Vijaya Kumar Vs.
Malini.V.Rao reported in ILR 2016 Kar. 2670 to
62
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
argue that without the consent of the Principal, agent
could not have dealt on his own account and the
Principal may repudiate the transaction. Said
proposition is at para-6 of the said decision. Said
principle has been stated in relation to the transaction
where material facts have been dishonestly concealed
by the Agent and advantage has been taken of by the
Agent. In this case, material discussed show that by
receiving the entire sale consideration Sale Agreements
and General Power of Attorneys were executed along
with affidavit. Therefore, same had created interest in
favour of the Agreement holders-cum-General Power
of Attorney Holders and hence above decision does not
63
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
aid defendants case in the face of Sec. 202 of the
Indian Contract Act.
24. Learned counsel for defendants has relied on
a decision in Kewal Krishan Vs. Rajesh Kumar and
ors, DD 22.11.2021 in Civil Appeal No.6989-
6992/2021 and drawn attention to the proposition laid
down at para-15 of the said decision. Said decision lays
down the Law with respect to non payment of Sale
price and its consequences. But, in this case, Sale
Agreements clearly shows that entire sale
consideration was paid thereunder and subsequently
when again dispute arose from the side of the second
wife and children of Krishnappa, a settlement has been
reached and Affidavits have been sworn to by
64
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
reaffirming the sale of the suit sites by expressing no
objection for getting the katha changed in their names.
Hence, above decision also do not apply to the facts of
these cases which are under consideration.
25. As regards the possession of the plaintiffs is
concerned, Learned counsel for defendants has relied
on a decision in the case of Vasudev and Ors. Vs.
Tukaram Bhimappa Naik and ors., reported in ILR
2014 Kar. 4716 to contend that entries in revenue
records are still in the name of defendants and since
the suit property is agricultural land,said entries have
significance and therefore, plaintiffs case that they are
in possession of the suit property cannot be accepted.
Even though the entries in revenue records are entitled
65
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
to presumption under section 133 of the Karnataka
Land Revenue Act, they are rebuttable in nature.
Admitted facts in the Sale Agreements that layout of
residential sites was formed and sites were sold to the
purchasers thereunder shows that although no order
for conversion of the land for non agricultural use was
taken, defendants family has formed sites in the
revenue land and sold same to various persons. There
is clear recital in the Sale Agreements and also later
affidavits, about handing over of possession of the suit
schedule sites to the purchasers. Same clearly rebuts
presumption which were available in respect of the
entires in favour of defendants. Hence, said contention
also falls on ground.
66
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
26. Relying on a decision in the case of Jitendra
Singh Vs. State of Madhya Pradesh and Ors,
reported in 2021(2) Kar.L.R.477 (SC) it has been
contended by defendants counsel that revenue entries
do not extinguish title to the property. But, in this case,
title is not being considered on the basis of the
revenue entires. Admittedly, suit property originally
belongs to Kirshnappa who is the father of defendants,
he having had acquired it under the family partition.
But thereafter, defendants family has formed a layout
of residential sites and sold the sites to third parties
including the plaintiffs. They have executed
unregistered General Power of Attorney and on the
strength of the same, in turn they have among
67
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
themselves executed Sale Deeds and all the plaintiffs in
these cases are members of the same family. In the
case of Rajni Tandan vs.Dulal Ranjan Ghosh
Dastidar, in Civil Appeal No.4671/2004, the Apex
court has held that even though the sale deed has
been executed on the basis of an unregistered General
Power of Attorney yet when same is executed by
General Power of Attorney Holder in his independent
right, mere fact that General Power of Attorney was
unregistered document does not prevent transfer of
title. Apex court has explained the reason for expecting
documents to be registered by highlighting that same
is to safeguard the interest of the contracting parties
and to prevent fraudulent transactions, the ratio laid
68
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
down in Rajni Tandon Case as reflected in the head
note and excerpts thereunder is as follows:-
".A. Registration Act, 1908 - Ss. 33(1) and 32 -
Presentation by exccutant of document on the basis of an
unregistered power of attorney - Compulsory registration
of power of attorney under S. 33 - When and to whom
applicable - No allegation of fraud -- Effect - Vendor
principal authorizing agent to execute a sale deed on the
basis of an unregistered power of attorney (only
notarized) - Agent (power-of-attorney holder) executing
sale deed - Thereafter agent presenting sale deed for
registration on the basis of the same unregistered power
of attorney - Legality - Compulsory registration of power
of attorney of an agent presenting a document for
registration, held, would have been mandatory only if
power- of-attorney holder (agent) presenting the
document would not have been the executant As the
power-of-attorney holder was the executant of the
document, held, he was also legally competent to present
the document for registration - Object of Registration Act,
1908 being to prevent fraud, and no allegation of fraud
since made, the registration, held, was proper
B. Registration Act, 1908 - Object of, held, is designed to
guard against fraud by obtaining a contemporaneous
publication and an unimpeachable record of each
document The High Court by the impugned order in
second appeal, held, that the sale deed in favour of the
appellant-plaintiffs was not properly registered. The High
Court held that since the power of attorney was
admittedly, not a registered document and was simply
notarized, 1, power-of-attorney holder who executed and
69
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
signed the document on behalf of N, could not have
presented the document for registration in view of
Sections 32 and 33(1)(a) of the Registration Act, 1908
Allowing the appeal, the Supreme Court
Held: Section 33 will come into play only in cases where
presentation is in terms of Section 32(0) of the
Registration Act, 1908. In other words, only in cases
where the person(s) signing the document cannot present
the document before the registering officer and gives a
power of attorney to another to present the
document that the provisions of Section 33 get
attracted. It is only in such a case, that the said power of
attorney has to be necessarily executed and
authenticated in the manner provided under Section
33(1)(a) of the Registration Act. Where a deed is executed
by an agent for a principal and the same agent signs,
appears and presents the deed or admits execution
before the registering officer, that is not a case of
presentation under Section 32(c) oft f the Act. (Paras 33
and 27) D. Sardar Singh v. Seth Pissumal Harbhagwandas
Bankers, AIR 1958 AP 107; Abdus Samod v. Majiran Bibi,
AIR 1961 Cal 540 overruled Motilal v, Ganga Bal, AIR 1915
Nag 18; Gopeswar Pyne v. Hem Chandra Bose, AIR 1920
Cal 316; Aisha Bibi , Chhaiju Mal, AIR 1924 All 148; Sultan
Ahmad Khan V. Sirajul Haque, AIR 1938 All 170; Ram
Gopal L Mohan Lal, AIR 1969 Punj 226; Goswami
Malli Vahuji Maharaj v. Purushottam Lal Poddar, AIR 1984
Cal 297, referred to In this cause, the presentation is by
the actual executant himself who had signed the
document on behalf of the principal and therefore, the
agent/power-of- attorney holder is entitled under Section
32(a) to present it for registration and to get it registered
even though the power of attorney was not a registered
document and only notarized. In the facts of the present
case, it is quite clear that I was given the full authority by
70
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
N under the notarized power of attorney to transfer the
The suit property and to execute the necessary
document. It is an accepted position that the transfer
deed was executed by / in the name and on behalf of N
thereof. Therefore, for the purposes of registration office
under Section 32(0), 1 is clearly the "person executing the
document. The plea taken by the respondents that in
order to enable / to present the document it was
necessary that he should hold a power of attorney
authenticated before the Sub-Registrar under the
provisions of Section 33 is not tenublons per the language
of Section 32 (Paras 34 and 28) The object of registration
is designed to guard against fraud by obtaining a
contemporaneous publication and an unimpeachable
record of each document. The instant cries is one where
no allegation of fraud has been raised. In view thereof the
duty cast on the registering officer under Section 32 of
the Act was only to satisfy himself that the document was
executed by the person by whom it purports to have been
signed. The Registrar upon being so satisfied and upon
registration of the same being presented with a
document to be registered had tightly to proceed with the
(Para 29)26. We have merely drawn attention to and
reiterated the well-settled legal position that SA/GPA/WIL
In a much subsequent decision in the case of Suraj
Lamp Industries Pvt. Ltd. Vs. State of Haryana (2012)
1 SCC 656 the Apex court has though laid down that an
end should be put to the transactions of unregistered
71
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
General Power of Attorney it has been observed that the
said decision is not intended to affect the bona fide
transactions which have taken place heretofore. In Suraj
Lamp Industries Pvt. Ltd. Case, at para-26 and 27, it is held
as under:-
"26. We have merely drawn attention to and reiterated
the well-settled legal position that SA/GPA/WILL
transactions are not `transfers' or `sales' and that such
transactions cannot be treated as completed transfers or
conveyances. They can continue to be treated as existing
agreement of sale. Nothing prevents affected parties
from getting registered Deeds of Conveyance to
complete their title. The said `SA/GPA/WILL transactions'
may also be used to obtain specific performance or to
defend possession under section 53A of TP Act. If they
are entered before this day, they may be relied upon to
apply for regularization of allotments/leases by
Development Authorities. We make it clear that if the
documents relating to `SA/GPA/WILL transactions' has
been accepted acted upon by DDA or other
developmental authorities or by the Municipal or
revenue authorities to effect mutation, they need not be
disturbed, merely on account of this decision.
27. We make it clear that our observations are not
intended to in any way affect the validity of sale
agreements and powers of attorney executed in genuine
transactions. For example, a person may give a power of
72
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
attorney to his spouse, son, daughter, brother, sister or a
relative to manage his affairs or to execute a deed of
conveyance. A person may enter into a development
agreement with a land developer or builder for
developing the land either by forming plots or by
constructing apartment buildings and in that behalf
execute an agreement of sale and grant a Power of
Attorney empowering the developer to execute
agreements of sale or conveyances in regard to
individual plots of land or undivided shares in the land
relating to apartments in favour of prospective
purchasers. In several States, the execution of such
development agreements and powers of attorney are
already regulated by law and subjected to specific stamp
duty. Our observations regarding `SA/GPA/WILL
transactions' are not intended to apply to such
bonafide/genuine transactions"
27. Above discussed materials show that the
plaintiffs were actually in possession of the suit land as on
the date of the suit. I have further considered cross
examination of Pws.1 and 2 in the case. In the cross
examination of PW.1 and 2 there is nothing elicited which
discredit the plaintiffs claim in the suit sites regarding
documentary evidence relied upon by them or their oral
73
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
testimony in so far as the possession of the suit schedule
property is concerned. PW.1 admits that Ex.P.2 layout plan
was not available on the date of the Agreement of Sale.
Defendants are seriously disputing the identity of the suit
property. PW.1 has of-course stated that earlier to the
Agreement he had not visited the suit schedule property.
Same has nothing to do with the contention of the parties
because the plaintiffs being purchases if they had not
visited earlier to the Sale Agreement it does not mean that
they did not see the suit schedule sites respectively sold to
them. He has denied the suggestion that the suit schedule
sites as mentioned in the Sale Deeds are not in existence.
He has further mentioned that at the time of execution of
the Sale Deeds, Ex.P.2 Plan was not handed over to them.
But, it is natural that since the Sale Deeds have been
74
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
obtained on the basis of the General Power of Attorney
documents, layout plan marked at Ex.P.2 could not have
been handed over by the defendants or their father at the
time when the said sale deed were got registered by the
plaintiffs on the basis of the General Power of Attorneys in
their favour. No further queries have been put to PW.1 as
to how and when Ex.P.2 was obtained by the plaintiffs. He
of course states that the parties to Ex.P.3, 4, 25, 26, 46, 47,
66, 67, 87 and 88 did not sign the said documents before
him. Yet from the contention of the defendants in the
written statement as well as the legal notices caused by
the defendant No.1 to the plaintiffs and admissions
elicited regarding defendant No.1's signatures in the said
document during his cross examination and his feigning
ignorance regarding signatures of other parties such as his
75
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
father and other family members in the said documents
clearly show that the defendants father, defendant No.2
and other family members have executed same. PW.2 in
his cross examination states that in 2009 defendants
started storing trash in the suit schedule sites and
compound wall and then laid sheet roofs. He of-course
states that he did not see who put up the said
construction. Point at present is whether the plaintiffs have
proved their possession of the suit schedule property as
on the date of the suit. For the purpose of the said point,
above statement is not of much consequences, because
suits have been filed in the year 2007 and according to the
above statement defendants started stocking trash and put
up the construction of compound wall, put up sheet roof
over the same in the year 2009. PW.2 has also denied the
76
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
suggestion that under the Sale Agreement and General
Power of Attorneys possession of the suit schedule site
had not been handed over the plaintiffs. So, in the cross
examination of Pws.1 and 2 there is nothing which shows
that the plaintiffs were not in possession of the suit
schedule property as on the date of the suit.
28. Now, in this circumstance, documentary evidence
discussed earlier will have to be considered. As already
held, plaintiffs have proved the Sale Agreements and
General Power of Attorneys executed in their favour. The
said Sale Agreements clearly disclose that the entire sale
consideration was received and possession was handed
over thereunder. Of-course, they are unregistered Sale
Agreements. On the basis of the unregistered Sale
77
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Agreement possessary interest of course cannot be
considered to have passed in view of bar under section 49
of the Registration Act. Yet, the GPAs. have been executed
and the plaintiffs have secured the Sale Deeds on the
basis of the said G.P.As. Further, in this connection, a
decision of Apex Court in the case of Bondar Singh
and others Vs. Nihal Singh and others reported in
(2003) 4 Supreme Court Cases-161 , at para-5 it is
held as under:-
"5. The main question as we have already noted is
the question of continuous possession of the plaintiffs
over the suit lands. The sale deed dated 9.5.1931 by
Fakir Chand, father of the defendants in favour of Tola
Singh, the predecessor interest of the plaintiff, is an
admitted document in the sense its execution is not in
dispute. The only defence set up against said
document is that it is unstamped and unregistered
and therefore it cannot convey title to the land in
78
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
favour of plaintiffs. Under the law a sale deed is
required to be properly stamped and registered
before it can convey title to the vendee. However,
legal position is clear law that a document like the
sale deed in the present case, even though not
admissible in evidence, can be looked into for
collateral purposes. In the present case the collateral
purpose to be seen is the nature of possession of the
plaintiffs over the suit land. The sale deed in question
at least shows that initial possession of the plaintiffs
over the suit land was not illegal or unauthorized.
Also, as held in the case of Rajni Tandon by the Supreme
Court, purpose of registration is to safeguard the interest
of the parties. When the evidence clearly shows that there
were bonafide sale consideration and the possession of
the properties had been handed over to the purchasers
that too prior to later decision of the Apex court in Suraj
Lamp Industries case, wherein prospective effect it was
held that practice of parties entering into the sale
79
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
transactions on the basis of the unregistered GPAs. should
be put to an end, I am of opinion that the Sale Deeds got
registered by the plaintiffs on the basis of the unregistered
GPAs. a decade before the said later proposition of law was
laid down requires to be given effect to, to do complete
justice in the case. Hence, I am of the view that based on
the above said discussed evidence, plaintiffs have proved
their possession on their respective suit schedule sites as
on the date of the suit.
29. Now, question is whether the defendants have
put up construction in the suit property during the
pendency of the suit in violation of the interim order of
temporary injunction which was modified into an order of
status quo in MFA No.9684/2004 by the High Court of
Karnataka, Bengaluru. Defendants have contended that
80
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
during the later stage of the suit that the buildings in
question in the suit property were already existing before
institution of the suit. In other words they are denying
putting up the construction in violation of the interim
order of injunction/status quo. Learned counsel for the
plaintiffs has called attention of the court to the order
passed by this court on the plaintiffs interlocutory
application which had been filed under order 39 Rules 1
and 2 of the CPC thereby granting an order of temporary
injunction in their favour pending disposal of the suit.
Learned counsel for plaintiffs argues that while the said
I.As. were being heard, defendants counsel had made a
clear submission before the court that entire extent of 1
Acre 16 guntas of Survey Number- 42 is vacant land and
likewise suit schedule property is vacant site and no
81
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
construction is put up in the suit schedule property. Both
counsel had made said submission and the same has been
noted by the Learned Presiding Officer in order dtd.
26.07.2007 passed on I.A.No.I at para-8 of the said Order.
In fact, in the written submission filed by the plaintiffs, said
observation made by this court in its order dtd. 26.07.2007
passed on I.As has been culled out. Thus, at para-8 of the
said order dtd. 26.07.2007 this court while discussion has
held as follows:-
" As per the arguments advanced by both counsel land
measuring 1 acre 16 guntas of Survey Number- 42 is a
vacant land likewise, the suit property is a vacant site. No
construction put up in the schedule property."
The above observation made by my Learned
Predecessor while disposing off IA No.I shows that
defendants counsel while submitting arguments on the
82
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
above said I.As. had made submission that entire land
measuring 1 Acre 16 guntas in Survey Number- 42
including the suit schedule sites were vacant and no
construction had been put up in the property at that time.
In fact, said submission binds the defendants in as much
as same is pertaining to point of fact and not concession
given in regard to question of law. It is also corroborated
by written statement of defendants, because they have not
taken any contention therein about existence of any
construction. Further, Sale Agreements show vacant sites
were sold. It is obvious that in the Sale Deeds got
registered on the basis of the General Power of Attorneys,
mention of shed measuring One square each is made to
secure registration as there was perhaps prohibition in
regard to sites in revenue land.
83
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
30. That aside, in the original written statement filed
in all these cases which are similar, defendants have
specifically pleaded that even as on the date of filing the
written statement there was no house in the suit property.
Said contention of the defendants is on page-2, para-2 of
their written statement. Further, at para-2 of the written
statement they have placed that the suit land is still an
agricultural land. Besides, as mentioned supra, defendants
have no where contended in their original written
statement about putting up any construction or existence
of any construction in the suit schedule property as on the
date of filing the written statement. In the addl. Written
statement filed by them, much later, it is contended that
their sisters are in occupation of a portion of land bearing
Survey Number- 42/P5. Thus, they have pleaded that
84
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
subsequent to filing of the suit they have not put up any
construction in violation of the interim order of injunction/
status quo.
31. This brings us to the report of the Court
Commissioner in the case. At the instance of the
defendants counsel court commissioner was appointed
who has conducted the local inspection and submitted his
report and pursuance to the objections filed to the same
by the plaintiffs he has been examined as C.W.1 and cross
examined in the case. Ex.C.1 to C.12 have been marked
through the Court Commissioner. Ex-C.5 is the Spot
mahazar drawn by him and Ex.C.6 is his Report and Ex
C.7/1 to 40 and C.8/1 to 20 are the Photographs taken by
the Court commissioner of the suit schedule property
during the local inspection. Ex C.9 and 10 are the C.Ds. of
85
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
the said photographs. Ex C.12 is the statement of
objections filed by the plaintiffs to the Commissioner's
Report. According to the Report of the Commissioner, to
the west of the entire property bearing Survey Number-
42/P5 there is a road and there is another road which runs
from West to East in between the building where name of
'K.Bharathi' was written and Zinc sheet scraps covered
dumps area in the said Survey Number- 42/P5 land was
found. The Court Commissioner noted boundaries for the
entire land and existence of shed in the southwest corner
with the name written on its western wall 'K.Manjunatha
Reddy' who is defendant No.2 in this case. He has further
noted that next to the said shed on the northern side there
was a wall constructed with cement bricks without
plastering and next to the said wall there was another shed
86
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
on the northern side and western wall of the said shed wall
also bear board with name 'K.Manjunatha Reddy' i.e.,
defendant No.2 and there is a big gate to the north of the
said shed facing western side and towards north of the
said gate there are zinc sheet covering lock of wall around
compound and the defendant No.2 K.Manjunatha Reddy
opened the gate and scrap materials had been dumped in
the said place which was fully covered by zinc sheet on the
compound wall and next to the said zinc sheet covered
area on the north side there is a road from west to east
and behind scrap materials dumped area and south west
wall mentioned above there were cattle tied and dairy
activity could be seen and on the west side of the two
sheds bearing the name of 'K.Manjunatha Reddy' there was
debris. Actually the above said road runs from West to East
87
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
on the south west cattle shed was found and on the south
west side of the road referred above, sheet roof building
had been constructed with writing on its western wall as
'This house belongs to K.Bharathi Survey Number- 42/P5'
and towards east of said building there is vacant land and
there is compound wall towards north of this vacant land
and on the compound wall on the eastern side after the
building of 'K.Bharathi' name of 'Roopa D/o Krishnappa' is
written and then towards east of the same compound wall
another name 'Padma D/o Krishnappa' was written. Court
commissioner states that a huge cow-dung was stored in
the said place and next to Bharathi's property till eastern
boundary it was vacant except for storage of cow dung. It
is further stated that towards north of the building referred
as 'K.Bharathi' there is compound wall and there is western
88
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
side road towards north having a curve and near the said
curve there was a wall on the northern side with a gate and
on the western wall there was writing 'This property
belongs to K.Gopal S/o Krishnappa Survey Number- 42/P5,
Aralukunte village' who is defendant No.1. There was no
agricultural activities on the land other than dairy activity
with the structures mentioned above in the above said
Survey Number land.
32. Above said report of the court commissioner
which has not been objected by the defendants show that
as on the date of the said Commissioner conducted the
local inspection on 12.01.2013 above said constructions of
sheds, compound walls and storage of scrap material was
found. In fact, photos of the same have been produced by
the Court Commissioner. Since it has been held that the
89
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
suit land was vacant as on the date of the suit in view of
the written statement pleadings and also submissions
made by both the counsels during hearing of I.A.NO.I,
which has been noted in the order dtd. 26.07.2007 by my
learned Predecessor, court commissioner's above said
finding shows that the above said constructions have been
made subsequent to filing of the suit. That too, when there
was an interim order of injunction/status quo in respect of
the suit property. Cumulative upshot is that temporary and
same permanent like constructions have been put up in
the suit schedule property subsequent to filing of the suit
in violation of the interim order granted in the case. Order
sheet shows that on 6.2.2007 interim order of injunction
was granted with direction to the plaintiffs and defendants
to maintain status quo till disposal of the I.A. No.I,
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OS Nos.25124, 25125, 25127,
25128 & 25129/2007
thereafter by order dtd. 26.07.2007 order of temporary
injunction to restrain the defendants from interfering with
plaintiffs possession of the suit property till disposal of
the suit was granted by allowing IA No.I filed by the
plaintiffs. Again in MFA No.9684/2004 said order has been
modified with a direction to both the parties to maintain
status quo. Therefore, from the institution of the suit there
was no interim order of status quo/temporary
injunction/status quo till date. When such is the case,
plaintiffs have established that the suit lands were vacant
as on the date of the suit. Now, the court commissioner
report shows that there are some temporary and
permanent structures put up in the suit schedule sites and
spreading over the entire land in Survey Number- 42/P5.
Natural corollary is that the said constructions have been
91
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
put up subsequent to institution of the suits in violation of
the interim orders in force.
33. Further, in the cross examination of the Court
Commissioner Learned counsel for plaintifs has
confronted some recent photographs of the suit schedule
properties as per Ex.P.114 to 117. When Ex.P.114 photo
was confronted, the Court Commissioner/C.W.1 has
admitted that the said phone pertains to the same
property which is in dispute and it was inspected by him.
But, then he has stated that when he inspected, nature of
the property was different from what is seen in the photo
confronted to as per Ex.P.114. Similarly, he has admitted
Ex.P.115 Photograph and Ex.P.116 Photo. He states that the
Shed marked in Ex.P.116 was not existed when he
conducted the local inspection under Warrant. So, same
92
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
shows that subsequent to the Court Commissioner
conducted the local inspection and submitting report again
constructions have been made in the suit properties.
Similarly in respect of Ex.P.117 Photograph Court
Commissioner has admitted that when he conducted the
local inspection there was zinc sheet for the roof, but now
same has been changed. He admits that in his report he
has wrongly mentioned the sheet roof building on which
name of K Bharathi is written has to be situated on the
south western side instead of north western side. Evidence
of Court Commissioner and the above photographs which
wee admitted by him show that not only after institution of
the suit and passing of interim order constructions have
been put up in the suit schedule property, but also even
after court commissioner conducted the local inspection
93
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
and submitted the report further constructions have been
put up. Though the defendants claim that their sisters put
up some constructions, photographs taken by the Court
Commissioner show that on two sheds name of
Defendant No.2 K.Manjunatha Reddy had been written.
Preponderance of evidence shows that it is the defendants
who have put up the construction of the said buildings in
the suit property as well as remaining portion in Survey
Number-42 of Aralukunte village measuring 1 Acre 16
guntas. Since it is clearly established that when the suit
was filed entire land measuring 1 Acre 16 guntas was
vacant and an interim order has been passed in favour of
the plaintiffs immediately upon entering appear by the
defendants. It is manifest that constructions have been put
up and subsequent to the granting of interim order of
94
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
injunction and status quo in respect of the suit property
by the defendants. In the written statement defendants
have claimed that the suit schedule property was still an
agricultural land as on the date of their filing the same.
But, the evidence of the Court Commissioner shows that
when he conducted the local inspection the suit property
did not have nature of agricultural land. Apart from that
already constructions had been put up. Whereas, while
submitting the arguments on I.A.No.I it has been recorded
that both counsels have made submissions that entire land
measuring 1 Acre 16 guntas in question was vacant as on
the said date.
34. From the above said evidence, I am of opinion
that the plaintifs have proved that they were in lawful
possession of the respective suit schedule sites as on the
95
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
date of the suit. They have also proved that during the
pendency of the suit defendants have illegally put up Zinc
sheet shed and stored scrap material in the suit property.
It is also established from the above discussed evidence
that the defendants have put up further constructions as
well as above constructions in violation of the interim
order/status quo granted in the case. Consequently, Issue
No.1 and Addl. Issue No.1 in OS No.25124/2007, OS
No.25125/2007, OS No. 25127/ 2007, OS No.25128/2007
and OS No. 25129/2007 are answered in the affirmative.
35. Issue No.2 in OS No.25124/2007, 25125/
2007, 25127/ 2007, 25128/2007 and 25129/2007:-
Discussions made on Issue No.1 and Addl. Issue No.1
amply prove that the defendants have interfered with the
96
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
plaintifs possession of the respective suit schedule
properties. Plaintifs have proved that the suit schedule
sites had been sold under Sale Agreements and General
Power of Attorneys by handing over possession of the
properties to the purchasers and afterwards when some
dispute had arisen parties reached into a settlement and
executed Affidavits thereby swearing to the fact that the
suit schedule sites have been sold to the plaintifs by
executing the General Power of Attorneys and hence they
ratify the ownership of the respective plaintifs in respect
of the suit schedule sites. In fact, Sale Agreements referred
to above are in the nature of unregistered sale deeds. They
have been executed as Sale Deeds along with the General
Power of Attorney, most probably due to prohibition of
registration imposed by the Government in respect of
97
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
revenue sites. But, even after entering into such
settlements defendants have not stopped their claim over
the suit property. Said fact itself shows that the defendants
were interfering with plaintiffs possession of the suit
schedule property. Therefore, plaintifs have proved cause
of action for the suit. Consequently, Issue No.2 in OS
No.25124/2007, OS No.25125/2007, OS No.25127/2007, OS
No.25128/2007 and OS No.25129/2007 is answered in the
affirmative.
36. Additional Issue No.2 in OS No.25124/2007,
25125/2007, 25127/2007, 25128/2007 & 25129/ 2007:-
Suit has been filed initially for the relief of permanent
injunction. Cause of action is claimed to have occurred on
03.01.2007 when the defendants tried to interfere with
possession of the suit schedule property. Suit has been
98
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
filed in the same year. Therefore, relief of permanent
injunction sought in the suit is within the period of
limitation. So far as the relief of mandatory injunction, it
has been claimed by way of amendment during the
pendency of the suit. Plaintifs have sought the said relief
following the defendants violating the interim order of
injunction and putting up the constructions and changing
the nature of the suit schedule property. Hence, same is
also within the period of limitation. Defendants contention
that suit is barred by limitation has not been substantiated
in any manner. Consequently, Addl. Issue No.2 in OS
No.25124/2007, OS No. 25125/2007, OS No. 25127/ 2007,
OS No.25128/2007 and OS No.25129/2007 is answered in
the negative.
99
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
37. Additional Issue No.3 in OS No. 25124/2007,
25125/2007, 25127/2007, 25128/2007 & 25129/ 2007:-
Defendants have contended that the court fee paid is
insufficient. But, the suit has originally filed for the relief of
permanent injunction by paying the requisite court fee of
Rs.25/- by valuating the suit under section 26(c) of the
Karnataka Court Fees and Suits Valuation Act. During the
pendency of the suit, defendants have put up
constructions in the suit property by violating the interim
order of injunction/ status quo granted in the case and
hence, plaintifs have sought the relief of mandatory
injunction. When the defendants have violated the interim
order of injunction/status quo and changed the nature of
the suit property, court is bound to restore the suit
property to its original status in order to ensure that justice
100
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
is assured and also violation of the court order is not
disrespected. Therefore, said relief of mandatory
injunction sought for by the plaintifs having arisen in view
of the defendants putting up constructions in violation of
the interim orders of injunction/status quo, Plaintifs are
not required to pay further court fee on the same. They
have even not required to seek relief of possession
separately. This is settled position of Law. Therefore,
contention of the defendants that the court fee paid is
insufficient cannot be accepted. Consequently, Addl.
Issue No.3 in OS No.25124/2007, OS No.25125/2007, OS
No. 25127/ 2007, OS No.25128/2007 and OS No.
25129/2007 is answered in the negative.
101
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
38. Issue No.3 and Additional Issue No.4 in OS
No.25124/2007, 25125/2007, 25127/2007, 25128/2007
& 25129/ 2007:- To sum up the cases, plaintifs have
been put in possession of the suit schedule property
initially under the unregistered Sale Agreement cum
unregistered Sale Deed dtd. 14.12.1988. At the same time,
General Power of Attorney (unregistered) has been
executed in respect of each site in favour of the purchaser.
In turn on the basis of the General Power of Attorney
executed by the defendants father, Defendant No.1 and
some of their family members-GPA Holders cum
unregistered Sale Agreement/Sale Deed holders have
executed Regd. Sale Deed in favour of the respective
plaintifs. Thereafter, the defendants vendor's second
wife's children have raised dispute and then another
102
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Agreement dtd.09.09.1996 has been entered into between
the purchasers on one side and defendants father
Krishnappa, his second wife Papamma and her children on
the other side. In the said further Agreement purchasers/
plaintiffs have agreed to make additional payments to the
defendants father, his second wife and her children in a
sum of Rs.3,35,000/- and out of the same, Rs.30,000/- per
site for 17 sites and Rs.5,000/- per site for 7 sites . In the
said agreement, purchasers have agreed to pay additional
amount on or before 9.11.1996 and it has further been
agreed that if the vendors fail to accept the said sum and
to give letter to the competent authority for transfer of
katha, second party/purchasers shall be at liberty to
enforce the said Agreement by filing a suit for Specific
performance. It is the contention of the defendants'
103
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
counsel that as per the said term of the Agreement dated
9.9.1996, plaintifs ought to have filed a suit for specific
performance. Whereas, it is plaintiffs counsels contention
that subsequent to the said Agreement the very same
parties to the Agreement dtd. 9.9.1996 who are defendants
father Krishanppa, his second wife Papamma and her sons
Defendants 2 and 3 and daughters Bharathi and Roopa
have sworn to the Affidavit dtd. 24.10.1996. In this
connection, plaintiffs counsel has relied on a decision of
Apex court in the case of S.Chattanatha Karayalar Vs.
The Central Bank of India Ltd., reported in AIR 1965
Supreme Court 1856. In said case at para-3, it is held as
under:-
" The Principle is well established that if the transaction
is contained in more than one document between the
104
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
same parties they must be read and interpreted
together and they have the same legal effect for all
purposes as if they are one document ".
The above said affidavit has been sworn to within the
specified time in the Agreement dtd.9.9.1996. In the said
affidavit, deponents above have categorically stated that
they have sold the suit sites in question and delivered the
vacant possession of the sites and the purchasers are
enjoying the same without any trouble from whomsoever
and the deponents have no right over the sites and they
have no objection to transfer katha in favour of the
purchasers under the Sale Deed. In additional to the
same, in the said affidavit they state that they have
delivered rough plan pertaining to the suit schedule site for
identification. When the admitted signatures of the
defendant No.1 in the Sale Agreements and General
105
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Power of Attorneys are taken into consideration and the
fact that the signatures of the defendants father
Krishnappa in the said documents is not in dispute is
taken into consideration and the admitted signatures of
the defendants father and his second wife Papamma in the
Sale Agreements and General Power of Attorney are
compared with the signatures of the defendants father
Krishnappa in the affidavit dtd. 9.9.1996 and 24.10.1996,
they clearly tally with each other. Then defendant No.1
states he does not know whether his father, his second
wife and her children have signed the documents in
question, defendants 2 and 3 being signatories to the said
Agreements were required to enter the witness box and
give evidence. Of-course, in the Agreement Ex.P.6,
Papamma is shown to have affixed her signature. However,
106
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
in other documents she has affixed LTM. Similarly
Defendant Nos.2 and 3 have signed in Kannada Language,
but in the Affidavit dtd 24.10.1996 they have affixed their
signature in English language and Papamma has also
affixed her LTM and not put her signature. Signature of
Krishnappa in the admitted Sale Agreement and GPA tally
with the signatures attributed to him in the Agreement dtd.
9.9.1996 and Affidavit dtd. 24.10.1996. Importantly,
defendant Nos.2 and 3 ought to have entered the witness
box to deny the signatures attributed to them in the
affidavit dtd. 24.10.1996, but same has not been done.
Whereas, in the Sale Agreements and General Power of
Attorneys defendant No.1, his father Krishnappa, his
father's second wife papamma and her daughters
Rukkamma and Rajamma have affixed their signatures/LTM
107
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
as the case is.Whereas, in the Sale Agreements and General
Power of Attorneys defendant No.1, his father Krishnappa,
his father's second wife Papamma and her daughters
Rukkamma and Rajamma have affixed their signatures/LTM
as the case is. These documents cannot be doubted,
because in the legal notice issued by the defendant No.1
he claims that they had been made to forcibly put the
signatures by his father Krishnappa which imply that the
said documents had been executed by them. On one hand,
it can be presumed that defendants father Krishnappa was
acting as kartha of the family and on the other hand his
only son from his first wife defendant No.1, his second
wife Papamma and her adult daughter at that time
Rajamma have subscribed to the said documents. Here
the point is whether the possession has been handed over
108
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
to the purchasers under the said documents. Since the
defendants father , defendant No.1 and adult daughter of
the second wife, another daughter have signed the said
deeds being adult members of the family, it can be safely
concluded that they have handed over the possession of
the sites sold thereunder to the respective purchasers.
Moreover, the children after attaining majority even it had
dispute regarding sale, remedy for them was to file a suit
for avoiding the said sale transactions. But, in the Partition
suit in OS No.8415/1996, the purchasers have not been
made parties. Therefore, independent of the further
Agreement dtd. 9.9.1996 and Affidavit dtd. 24.10.1996, in
the absence of minor family members of the defendants
not filing any suit against the purchasers for avoiding sale
transactions, Plaintiffs title under the Sale Deeds got
109
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
registered by them on the basis of the General Power of
Attorney which was coupled with interest cannot be
faulted with. Suit having been filed on the basis of the
possession of the suit sites, above discussed material
abundantly corroborate the plaintiffs case that possession
of the suit sites had been delivered under the above said
sale transactions.
39. In this background, submission made by the
Learned counsel for defendants before the court that the
suit schedule property was vacant at the time of
considering I.As filed by the plaintifs under Order 39
Rules 1 and 2 of the CPC. shows that suit schedule sites
were at least vacant at that point of time. As mentioned
earlier in the written statement originally filed by the
defendants, they have not taken any contention that they
110
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
have got the sheds or other constructions put up in the suit
schedule sites as on the date of the suit or even at the time
of filing the written statement. They have not taken any
such contention when they originally filed the written
statement. Further, in the land bearing Survey Number- 42
measuring 1 Acre 16 guntas, vendors family has retained a
number of sites for themselves. If their existed some shed
in the said portion before filing the suit it cannot be held
that the sheds were existing in the suit schedule sites as on
the date of the suit. Therefore, submission of the Learned
counsel for defendants that the land is completely vacant
can be accepted at least regarding the suit schedule sites.
When the Sale Agreements show that possession of the
suit property was delivered to the purchasers, burden is
on the vendors to show as to when and how they have
111
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
repossessed the sites and put up the constructions. By
remaining silent on the said aspect while filing the written
statement, defendants cannot turn around to state that
there were already sheds constructed. Therefore, I am of
opinion that evidence on record is sufficient to hold that
the suit schedule site/sites were vacant as on the date of
the suit, despite some contradictory stray statements
forthcoming from some of the purchasers while deposing
evidence before the court.
40. As regards identification of the suit property is
concerned, plaintifs have produced layout plan given to
them by the vendors before the court. On the other hand
defendants have produced another layout plan. But, the
defendants layout plan has been got prepared in
112
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
accordance with the partition they have effected
themselves after obtaining compromise decree in the
partition suit. Same is subsequent to the sale transactions
in favour of the purchases. Recitals in the Sale
Agreements can be taken into consideration for collateral
purpose regarding passing of consideration and also
nature of the property at that time. Sale Agreements
recitals show sites had been formed by the vendor's family
in the land bearing Survey Number- 42 measuring 1 Acre
16 guntas. There is clear recital that they had formed sites.
Therefore, it is clear that a residential layout had been
formed in the agricultural land when the Sale Agreement
and General Power of Attorneys were executed for
consideration. In the light of the said averments,
defendants layout plan based on the compromise partition
113
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
decree obtained by them cannot be accepted. It is very
clear that for the purpose of suit, the defendants have
created the said layout plan and they have also obtained
compromise decree in collusion. Again the blue print
copies of the layout plan produced by the plaintifs bear
the signatures of the defendants father Krishappa, LTM of
Papamma (LTM not visible, but endorsement regarding
LTM is visible) and signatures of defendants 2 and 3 and
their sister by name Bharathi. Defendants 2 and 3 have
not chosen to enter the witness box to deny the said
signatures and whereas DW.1/Defendant NO.1 feigns
ignorance about the signatures of the said parties. As
already mentioned in the affidavit dtd. 24.10.1996 there is
mention about handing over the signed rough plan
pertaining to the schedule property for identification.
114
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
There is no reason why the plan produced by the plaintifs
should not be accepted, though it is not approved plan. For
the purpose of identification of the sites purchased by the
plaintifs, said layout plan may be accepted.
41. Evidence discloses that now the entire land has
been leveled and hence layout as formed is not capable of
identification. However, on the basis of the layout plan and
boudaries mentioned in their sale agreements and General
Power of Attorneys which are produced by the plaintifs,
with the assistance of a technical person as court
commissioner it would be possible to re-construct the
layout and locate the respective sites of the plaintifs in the
said land. Hence, contention that the suit sites are not
capable of identification cannot be accepted in the case.
115
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
42. Commissioner report shows that now the
compound wall have been constructed haphazardly and
there are some sheds in the land and even after he
conducted the local inspection subsequently another shed
has been constructed as pointed out in the photos
confronted to him and the roof of the some other shed has
been changed. Commissioner report does not help in
knowing in which suit site compound wall has been
constructed and in which suit site sheds have been
constructed. Of-course, plaintiffs have mentioned the said
details in their additional affidavit. Since the boundary
mark do not exist after the defendants leveled the layout,
on a rough basis plaintifs have mentioned in their
affidavit about the location of the compound walls and
sheds in the sites purchased by them. But one thing is
116
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
clearly established that after an order of temporary
injunction/status quo was granted, the defendants have
put up constructions of some sheds and compound walls
in the suit schedule sites sold by them. Hence, there is
clear violation of the interim order of status quo/
temporary injunction which had been granted in the case.
In disobedience to the order of the court, defendants have
undertaken further constructions and changed the nature
of the suit schedule property. In this backdrop decision of
the Apex court in the case of Delhi Development
Authority Vs. Skipper Construction Co. (P) Ltd. and
another, reported in (1996) 4 SCC 622, relied on by
Plaintiffs counsel requires to be taken note of. At para-18
to 21 of the said decision it has been held as below:-
117
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
"18. The above principle has been applied even in the
case of violation of orders of injunction issued by Civil
Court. In Clarke v. Chadburn (1985 (1) All. ER 211), Sir
Robert Megarry V-C observed:
"I need not cite authority for the proposition
that it is of high importance that orders of the
Court should be obeyed, willful disobedience to
an order of the Court is punishable as a contempt
of Court, and I feel no doubt that such
disobedience may properly be described as being
illegal. If by such disobedience the persons
enjoined claim that they have validly effected
some charge in the rights and liabilities of others,
I cannot see why it should be said that although
they are liable to penalties for contempt of Court
for doing what they did, never the less those acts
were validly done. Of course, if an act is done, it is
not undone merely by pointing out that it was
done in breach in law. If a meeting is held in
breach of an injunction, it cannot be said that the
meeting has not been held. But the legal
consequences of what has been done in breach of
the law may plainly be very much affected by the
illegality. It seems to me on principle that those
who defy a prohibition ought not to be able to
claim that the fruits of their defiance are good,
and not tainted by the illegality that produced
them."
19. To the same effect are the decisions of the
Madras and Calcutta High Courts in Century Flour
Mills Limited v. S. Suppiah & Ors.(AIR 1975
Madras 270) and Sujit Pal v. Prabir Kumar Sun
(AIR) 1986 Calcutta 220). In Century Flour Mills
118
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Limited, it was held by a Full Bench of the Madras
High Court that where an act is done in violation
of an order of stay or injunction, it is the duty of
the Court, as a policy, to set the wrong right and
not allow the perpetuation of the wrong-doing.
The inherent power of the Court, it was held, is
not only available in such a case, but it is bound
to exercise it to undo the wrong in the interest of
justice. That was a case where a meeting was held
contrary to an order of injunction. The Court
refused to recognise that the holding of the
meeting is a legal one. It put back the parties in
the same position as they stood immediately
prior to the service of the interim order.
20. In Suraj Pal, a Division Bench of the Calcutta High
Court has taken the same view. There, the defendant
forcibly dispossessed the plaintiff in violation of the
order of injunction and took possession of the property.
The Court directed the restoration of possession to the
plaintiff with the aid of police. The Court observed that
no technicality can prevent the Court from doing justice
in exercise of its inherent powers. It held that the object
of Rule 2-A of Order 39 will be fulfilled only where such
mandatory direction is given for restoration of
possession to the aggrieved party. This was necessary, it
observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be
applied and given effect to by this Court, if necessary , by
over-ruling any procedural or other technical objections.
Article 129 is a constitutional power and when exercised
in tandem with Article 142, all such objections should
give way. The Court must ensure full justice between the
parties before it".
119
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
43. In a number of decisions Apex court has held
that when the defendants forcibly dispossess the plaintiff
in violation of the order of injunction or change the nature
of the property by disobeying the order of injunction, if
necessary by overruling any procedural or technical
objections, courts must ensure that full justice is made
between the parties. It has been held that court can invoke
inherent power to remove the mischief. In the above
decision, it has been further held that the courts in India
are not only courts of Law, but also courts of equity.
Therefore, law is very clear that when there is disobedience
to the interim order of the court and violation of the
interim order of injunction by the defendants, court can
invoke inherent power to do justice. I am of opinion that
said principle aptly apply to the facts of this case and the
120
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
technicalities and procedural objections cannot be allowed
to stand in light of the above position of law.
44. Learned counsel for defendants has drawn
attention to certain admissions made in some connected
cases by the plaintifs therein, wherein to a specific
question that the defendants are in possession of the
entire land measuring 1Acre 16 guntas in Survey Number-
42, they have answered in affirmative; and based on the
same, Learned counsel for defendants submits that the
same shows that the suit properties/ sites of each suits
being part of the suit land were in possession of the
defendants. I have considered the said contention with due
care. But, the fact is after the interim order of
injunction/status quo was granted during the pending of
the suit, plaintifs have filed application under Order 39
121
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
Rule 2A of the CPC by complaining that the defendants in
disobedience to the said interim order have encroached
upon the suit property. After plaintifs filed the said
application much subsequent to the same, plaintifs in the
connected cases have been cross examined by the
defendants counsel, by that time plaintifs had filed
application stating that in violation of the interim order
defendants have encroached upon the said property by
putting up certain constructions. Therefore, said statement
made by the plaintifs in the said suits cannot be given
any weight in favour of the defendants, and cannot be
considered as admission.
45. Now, having concluded that the suit schedule sites
in particular were vacant as on the date of the suit and the
defendants have encroached upon same by putting up
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OS Nos.25124, 25125, 25127,
25128 & 25129/2007
various constructions such as haphazards compound walls
and sheds, and by storing scrap materials, etc., I am of
opinion that by an order of mandatory injunction
defendants should be directed to remove the
encroachments on the suit schedule sites and hand over the
vacant possession of the same to the respective plaintifs
and also grant consequential decree of permanent
injunction to restrain the defendants from interfering with
plaintifs possession of their respective suit schedule sites.
Consequently, Issue No.3 and Addl. Issue No.4 in OS
No.25124/2007, 25125/2007, 25127/2007, 25128/2007 and
25129/2007 are answered in the affirmative.
46. Issue No.4 in OS OS No.25124/2007, 25125/
2007, 25127/2007, 25128/2007 and 25129/2007:- For
the reasons stated above, I proceed to pass the following :-
123
OS Nos.25124, 25125, 25127,
25128 & 25129/2007
ORDER
Suits filed by the Plaintiffs in OS No.25124/2007, 25125/2007, 25127/2007, 25128/2007 and 25129/2007 are hereby decreed with costs.
The Defendants and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suits at their cost within a period of three months and hand over vacant possession of the same to the respective plaintifs.
In default, it is ordered that the respective plaintifs shall be at liberty to execute this decree and remove the encroachments on their respective suit schedule sites and take possession of the same through court process and recover the cost from the defendants.
Further, plaintifs are granted Decree of permanent injunction thereby restraining the defendants from interfering with plaintiffs peaceful possession and enjoyment of their respective suit schedule sites.
Keep original of this Judgment in OS No. 25124/2007 and copies thereof in OS No.25125/2007, OS No.25127/2007, OS NO.25128/2007 and OS No.25129/2007.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 16 th day of March, 2022)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c.IV ACC & SJ.,Mayo Hall, Bengaluru.
ANNEXURE IN OS No.25124, 25125, 25127, 25128 and 25129/2007
1. List of witnesses examined for the plaintiffs:
P.W.1 Sri.N.Chandrappa P.W.2 Sri.C.Ramesh
2. List of witnesses examined for defendants:-
D.W.1 Sri.Gopal
3. List of witnesses examined for Court Commissioner:-
C.W.1 Sri.P.Venkataramana
4. List of documents exhibited for the plaintiff:
Ex.P.1 Certified copy of the Sale Deed dtd.
13.02.1952
ExP.2 Plan
Ex.P.3 Agreement of Sale dtd. 14.12.1988
Ex.P.4 General Power of Attorney dtd.
14.12.1988
Ex.P.5 Sale Deed dtd.30.03.1995
Ex.P.6 Notarized copy of the Agreement dtd.
9.9.1996
Ex.P.7 Affidavit of Krishnappa
Ex.P.8 Assessment Register Extract
Ex.P.9-20 Tax paid receipts
Ex.P.21-22 Encumbrance Certificates
Ex.P.23 Reply
Ex.P.24 General Power of Attorney
Ex.P.25 Agreement of Sale dtd. 14.12.1988
Ex.P.26 General Power of Attorney
dtd.14.12.1988
Ex.P.27 Sale Deed dtd. 30.03.1995
Ex.P.28 Affidavit of Krishnappa
Ex.P.29 Assessment Register Extract
Ex.P. 30-41 Tax paid receipts Ex.P.42-43 Encumbrance Certificate Ex.P.44 Reply notice Ex.P.45 General Power of Attorney of Sri. Ramesh Ex.P.46 Agreement dtd. 14.12.1988 Ex.P.47 General Power of Attorney Ex.P.48 Sale Deed dtd. 30.03.1995 Ex.P.49 Affidavit of Krishnappa Ex.P.50 Assessment Register Extract Ex.P.51-62 Tax paid receipts Ex.P.63-64 Encumbrance Certificate Ex.P.65 Reply Notice Ex.P.66 Agreement dtd. 14.12.1988 Ex.P.67 General Power of Attorney Ex.P.68 Sale Deed dtd. 30.03.1995 Ex.P.69 Affidavit of Krishnappa Ex.P.70 Assessment Register Extract Ex.P.71-82 Tax paid receipts Ex.P.83-84 Encumbrance Certificate Ex.P.85 Reply Notice Ex.P.86 General Power of Attorney Ex.P.87 Agreement dtd. 14.12.1988 Ex.P.88 General Power of Attorney dtd.
14.12.1988 Ex.P.89 Sale Deed dtd. 30.03.1995 Ex.P.90-91 Affidavit of Krishnappa Ex.P.92 Assessment Register Extract Ex.P.93-104 Tax paid receipts Ex.P.105-106 Encumbrance Certificates Ex.P.107 Certified copy of the Plaint in OS NO.8415/1996 Ex.P.108 Certified copy of the compromise petition in OS No.8415/1996 Ex.P.109-110 Photographs Ex.P.111 Order in MFA No.9686/2007 Ex.P.112 Photographs Ex.P.113 15 photographs Ex.P.114-118 Photos
5. List of documents exhibited for defendants:
Ex.D.1 Copy of the Memorandum of appeal in RFA No.1022/1997 Ex.D.2 Postal acknowledgment Ex.D.3 Residence Address Ex.D.4 Signature acknowledgment Ex.D.5-6 RTC Ex.D.7-8 Mutation Extracts Ex.D9 Tax paid receipt Ex.D.10-11 Encumbrance Certificates Ex.D.12-14 R.T.C. Extracts Ex.D.15 Certified copy of the IA filed in OS No.8415/1996 Ex.D.16 Decree in OS NO.8415/1996 Ex.D.17 Layout Plan Ex.D.18 Encumbrance Certificate Ex.D.19 Mutation Register Extract Ex.D.20-21 R.T.C. extracts Ex.D.22-23 Tax paid receipts Ex.D.24 Decree in OS No.8415/1996 Ex.D.25 Encumbrance Certificate Ex.D.26 Tax paid receipt Ex.D.27 Affidavit of Krishnappa Ex.D.28-30 Copies of notices. Ex.D.31-35 Postal receipts Ex.D.36-38 Postal acknowledgments Ex.D.39-43 Copies of caveat petition Ex.D.44 Certified copy of the Order sheet in RFA No.1022/2007 Ex.D.45 Death Certificate of Krishna Reddy Ex.D.46-50 Revocation Letters Ex.D.51 Certified copy of the Final Decree in OS No.8450/1996 Ex.D.52 Encumbrance Certificate Ex.D.53 Notice issued to Ramesh Ex.D.54 Form-B property register Extract Ex.D.55 Tax paid receipts Ex.D.56-57 Certified copy of the final decree in OS NO.8415/1996 dtd. 14.02.2007 Ex.D.58 Record of Rights in respect of Survey Number- 42/1 Ex.D.59 Katha Certificate. Dtd. 27.12.2013 Ex.D.60 Form'B' property register Ex.D.61 Katha registration notice dtd.
18.12.2013
Ex.D.62 Tax paid receipts
Ex.D.63 Final Decree passed in OS
No.8415/1996 dtd.14.02.2007 Ex.D.64 R.T.Cs Ex.D.65 Encumbrance Certificate Ex.D.66-70 Certified copy of Form-A along with IPO Counterfoil Ex.D.71-75 Endorsements issued by BBMP Ex.D.76 Certified copy of the written statement in OS No.8415/1996 Ex.D.77 Certified copy of the deposition of RW. 1 in OS No.8415/1996 Ex.D.78 Certified copy of the deposition of P.W.1 in OS No.8415/1996
6. List of documents exhibited for Court Commissioner Ex.C.1 Certified copy of the commission warrant Ex.C.2 Certified copy of the notice Ex.C.3 Certified copy of the Memo of Instructions of plaintiff Ex.C.4 Certified copy of the Memo of instructions of defendants Ex.C.5 Certified copy of the spot mahazar drawn Ex.C.6 Certified copy of the Report Ex.C.7-8 Certified copy of the Photos Ex.C.9 Certified copy of the Video DVD Ex.C.10 Certified copy of the DVD and Photo Ex.C.11 Certified copy of the bill issued by Preethi Video Vision Ex.C.12 Certified copy of the objection filed by the plaintiff.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru (Common judgment pronounced vide separate common judgment) ORDER Suits filed by the Plaintiffs in OS No.25124/2007, 25125/2007, 25127/2007, 25128/2007 and 25129/2007 are hereby decreed with costs.
The Defendants and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suits at their cost within a period of three months and hand over vacant possession of the same to the respective plaintiffs.
In default, it is ordered that the respective plaintiffs shall be at liberty to execute this decree and remove the encroachments on their respective suit schedule sites and take possession of the same through court process and recover the cost from the defendants.
Further, plaintiffs are granted Decree of permanent injunction thereby restraining the defendants from interfering with plaintiffs peaceful possession and enjoyment of their respective suit schedule sites.
Keep original of this Judgment in OS No. 25124/2007 and copies thereof in OS No.25125/2007, OS No.25127/2007, OS NO.25128/2007 and OS No.25129/2007.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru