Bangalore District Court
Sri.K.M.Babu vs Sri.C.P.Selvaraj on 4 December, 2019
1 O.S.No.2446/2009
IN THE COURT OF THE III ADDL.CITY CITIL & SESSIONS JUDGE,
BENGALURU CITY (C.C.H. No.25).
Dated: This the 4th day of December, 2019
Present: Sri.SACHIN KAUSHIK.R.N., B.Sc., LL.M.,
III Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No. 2446/2009
Plaintiff Sri.K.M.Babu,
s/o.M.Krishnamurthy,
Aged about 36 years, Residing at
Cholanayanaka Halli, Kasaba Hobli,
Bangalore North Taluk.
by Sri.S.Rajaditya, Pavan.R.Javali,Advocates.
Vs.
Defendants 1. Sri.C.P.Selvaraj,
s/o.Sri.Coil Pillai,
Aged about 62 years, Residing at
No.718, Immanual House,
Ex-Servicemen Colony, Banasawadi,
Bangalore-560043.
2. Sri.K.Narayanan,
s/o.C.N.Krishnamurthy,
Aged about 42 years, Residing at
No.2700, 11th Main, 2nd Stage,
'D' Block, Rajajinagar,
Bangalore-560010.
3. Smt.S.Padmavathi,
s/o.Santhanam, Aged about 64
years, Residing at New Thimmaia
Road, Cox Town, Bangalore-560005.
2 O.S.No.2446/2009
4. Sri.M.Seshachallam,
s/o.P.Aravmutham Naidu,
since dead, Rep. by his LRs.:
4(a) Smt.M.Pankajakshi,
w/o.late M.Sheshachallam,
Aged about 84 years.
4(b) Smt.K.Sasikala,
w/o.P.R.Krishnamurthy,
Aged about 57 years.
4(c) Sri.M.Surendra Babu,
Father's name not known to
Plaintiff, Major.
4(d) Sri.M.S.Deepak,
s/o.Surendra Babu,
Aged about 39 years.
Defendants 4(a) to 4(d) residing at
No.6, 3rd Main Road, Vasanth Nagar,
Bangalore-560052.
5. Smt.Usha Prasad,
w/o. Sri.M.C.S.Prasad,
Aged about 47 years,
Residing at No.11, Block 24,
S.B.M. Colony, Srirampura II Stage,
Mysore-570023.
6. Smt.Rajalakshmi Sampath Kumar,
s/o.K.P.Sampath Kumar, Major,
Residing at No.76, N.G.E.F. Layout,
Rajmahal Vilas Extension,
II Stage, Bangalore.
3 O.S.No.2446/2009
7. Sri.R.K.Gurumurthy,
s/o.R.Krishna Murthy,
Aged about 48 years, Residing at
No.898, 28th Main, 9th Block,
Jayanagar, Bangalore.
8. Sri.Publius,
s/o.Paul Durai, Aged about 33 years,
Residing at Kodigehalli Road,
Basavanapura, K.R.Puram,
Bangalore -560036.
9. Smt.Sarojini Chandrakant Bhagaje,
s/o.Sri.Chandrakant Bhagaje,
Aged about 43 years, Residing at
No.69/12, 'Prashant Nilaya, '
Coconut Garden, Kodige Halli,
K.R.Puram, Bangalore-560036.
10. Sri.Chandrakant Dhanapal
Bhagaje, Aged about 44 years,
Sy.No.18/9, Basavanapura Village,
Bangalore-560047.
11. Sri.Anand.G,
s/o.T.Gopal Reddy,
Aged about 26 years, No.3,
Akanksha', 3rd Cross,
Sathya Sai Baba Layout, K.R.Puram,
Bangalore-560036.
12. Smt.D.Nagarathna,
s/o.D.Dyananda Raju,
Aged about 50 years, Sy.No.18/9,
Basavanapura Village,
Bangalore-560047.
4 O.S.No.2446/2009
13. Sri.G.V.Shivamurtghaih,
s/o.late G.K.Veerappaiah,
Sy.No.18/9, Basavanapura Village,
Bangalore-560047.
14. Application to Implead
Defendant No.14 is rejected
vide Order Dated 8-9-2015.
15. Sri.Susheelan Padincharepet
Variyathe,
s/o.K.V.Damodaran,
Aged about 41 years, No.22,
'Sudha Sadan', 1st Cross, 2nd Main,
Chinnappanahalli, Marathahalli PO,
Bangalore-560037.
16. Sri.R.Dilip Kumar,
s/o.late R.N.Murthy Babu,
Aged about 36 years, No.62/1,
1st Cross, 3rd Block, Ayyappa Nagar,
K.R.Puram, Bangalore-560036.
D1-by Sri.K.M.Anilkumar, Advocate.
D4, 6, 7, 13, 15, 16 - Exparte.
D2,3,5, 8 to12-by Sri.P.M.Raghurama Reddy,
Advocate.
Date of Institution 06-04-2009
Nature of Suit Declaration and
Possession.
Date of commencement of 04-01-2019
Evidence
Date on which the Judgment 04-12-2019
was pronounced
Total Duration Years Months Days
10 07 28
5 O.S.No.2446/2009
JUDGMENT
The Plaintiff has filed this Suit for Declaring that he is owner of Suit Schedule 1 Property, and for Possession, and to Declare that Suit Schedule 1 Property is not converted, and the Layout Plan is invalid. Suit Schedule Property is Property bearing Sy.No.18/9, measuring 20 Guntas, out of 1 Acre 14 Guntas in Basavanapura Village, K.R.Puram, Bangalore East.
2) The Plaintiff states that he is owner of Suit Schedule 1 Property by Registered Sale Deed Dated 18-1-2005. Accordingly, Mutation M.R.No.32/05-06 was effected and Khata transferred. The Defendants claiming ownership over Sites formed in Suit Schedule 1 Property, and having constructed buildings have dispossessed him forcefully. He had filed a Suit at O.S.No.8995/2006 for Injunction. He further states that Conversion Order is illegal and so also Layout Plan on strength of said Order, and without authority on Application of Defendant No.1, and has filed this Suit.
6 O.S.No.2446/20093) The Defendants No.2, 5, 8 and 9 have filed Written Statement, so also Defendant No.3 and Defendants No.10 to 12. All of them state that they are purchasers of Sites measuring 40 feet x 30 feet in Suit Schedule 1 Property. Defendant No.3 states that he purchased Site No.40 by Registered Sale Deed Dated 6-12-1989. Defendant No.10 states he purchased Site No.80 by Registered Sale Deed Dated 29-6-2007 from one Sri.Kamaleshwaran, who had purchased from Defendant No.1 as G.P.A. Holder of the owners. Similarly, Defendant No.11 purchased Site No.78 on 14-7-2012 from 1st owner, after formation of Sites. Defendant No.12 purchased Site No.36 on 20-11-2004 from the previous owner. All Sites were sold between 1988-89, and some Defendants have constructed houses and are residing there, while some have sold to prospective purchasers. As they are in lawful possession, and not the Plaintiff, and Plaintiff has no right, they pray for dismissal of Suit.
4) The Court had framed 7 Issues, and out of the 7, after the Plaintiff amended the Plaint, praying for Possession, the Issues No.2 and 5 with respect to Possession and Unlawful Interference were deleted by Order Dated 7-11-2017. The 7 Issues are as follows:
7 O.S.No.2446/20091. Whether the Plaintiff proves his title to the Suit Schedule 1 Property?
2. Whether the Plaintiff proves his lawful Possession and enjoyment over Suit Schedule
2 and 3 Properties? (Deleted)
3. Whether the Plaintiff proves the Conversion Order and Layout Plan referred to by Defendants are fraudulent documents?
4. Whether the Defendants 2, 5, 8 to 12 prove that court fee paid on the Plaint is insufficient?
5. Whether the Plaintiff proves that unlawful interference by Defendants in respect of Suit Schedule 2 and 3 Properties? (Deleted)
6. Whether the Plaintiff is entitled for the reliefs prayed for?
7. What Order or Decree?
5)a) The Plaintiff has examined his brother, G.P.A. Holder as P.W.1, and got 53 documents exhibited.
b) The Defendant No.8 has examined himself as D.W.1, and got 41 documents exhibited.
6) Heard Learned Counsels of both sides, and perused all documents.
8 O.S.No.2446/20097) The answers to the above Issues are:
Issue No.1 - In the Negative, Issue No.2 - Deleted on 7-11-2017 Issue No.3 - In the Negative, Issue No.4 - In the Affirmative, Issue No.5 - Deleted on 7-11-2017, Issue No.6 - In the Negative, Issue No.7 - As per Final Order for the following:
REASONS
8) a) Issue No.1 : The Plaintiff, through his G.P.A. Holder, P.W.1 has produced his Original Sale Deed Dated 18-1-2005, Ex.P12, that shows, he has purchased Suit Schedule 1 Property from Legal Heirs of Chowrappa and Jojappa. It is not in dispute that originally Sy.No.18/9 measuring 1 Acre 14 Guntas belonged to Chowramma who purchased Suit Schedule 1 Property and surrounding Properties by Registered Sale Deed Dated 19-12-1955 from one Shri.Chinnappa, Ex.D1. The subject of dispute is that Legal Heirs of Chowramma executed General Power of Attorney Dated 9-5-1988 to Defendant No.1, Ex.D2, who formed 159 Sites in 1 Acre 14 Guntas, and the other Defendants are purchasers of said Sites, as per the Defendants, while the Plaintiff disputes the G.P.A., and 9 O.S.No.2446/2009 asserts that Legal Heirs of Chowramma have sold directly the Suit Schedule 1 Property to him. Under such circumstances, the Plaintiff having prayed to declare him as owner, and the Defendants disputing his Sale Deed, as created to knock off the Defendants' Properties, ought to have proved Ex.P12 as required u/S.68 of Indian Evidence Act. But the Plaintiff has not identified and got the Signatures and 1 Thumb Impression of the 10 Vendors marked, not got any Witness to Ex.P12 examined. By this, Ex.P12 stands not proved, and Plaintiff's Suit fails for this reason. It is settled principle of law that Mutation Entries, Ex.P3, and Revenue Records are not conclusive. Both the parties, claiming title over Suit Property, it is mandatory for Plaintiff, who has claimed relief, to prove his title document, but he has failed in proving so.
b) Secondly, S.48 of Transfer of Property Act, lays that Prior in time is Prior in Law. If Ex.D2, G.P.A. and Sale Deeds, Exs.D3 to D20, 27 to D30 are seen, they are all most from May 1988 to December 1988, while Plaintiff's Sale Deed, Ex.P12, Certified Copy also marked as Ex.P2 is of 18-1-2005, that goes to show that Legal Heirs of Chowramma, Vendors of Plaintiff had lost rights in Suit Schedule Property, and had no 10 O.S.No.2446/2009 right to sell, and, as such, the Plaintiff did not acquire any right in Suit Property. The decision laid down with respect to S.48 of Transfer of Property Act reported in ILR 2015 Pg.5767 is applicable to this case. The G.P.A., Ex.D2 Dated 9-5-1988 is Registered one. Clauses 5 and 6 empowers the Defendant No.1 to execute Sale Deed and receive consideration, and the Court finds the same true and lawful, and Sale Deed of Plaintiff, an attempt to grab the Sold Property.
c) Thirdly, the 4th Purchaser of Site No.33 and 34, wherein Defendant No.1 first sold to Smt.Alida, Smt.Alida to Sri.Joby, Sri.Joby sold to Dr.K.D.Avarachan and Dr.K.D.Avarachan sold to Dr.Nancy Avarachan on 13-2-2006, filed Suit for Permanent Injunction against the Plaintiff and P.W.1 at O.S.No.274/2009, and Learned XXXIX A.C.C.J., Bangalore has decreed the same on 16-4-2010, holding her Possession as legal and lawful, Ex.D40. This Decree has not been challenged, and it goes against the Plaintiff.
d) Similarly, purchasers from Plaintiff, Smt.Sujatha and Sri.Arun Raju filed Suit for Permanent Injunction at O.S.No.2265/2011 against Smt.S.Padmavati, purchaser for Defendant No.1, and 11 O.S.No.2446/2009 said Suit was dismissed on 28-8-2013 by Learned XXIV A.C.C. & S.J., Bangalore, Ex.D24, Judgment. This too, falsifies the Plaintiff's and his purchaser's claims.
e) By all these documents, the Court finds that Plaintiff has not proved his title, and Sale Deed of Plaintiff, Ex.P12 is falsely created to defeat the legitimate rights of Defendants, and accordingly, this Issue is answered in the Negative.
9) Issue No.3 : The Plaintiff has not adduced any document to show that the Suit Land Conversion Order and Layout Plan are fraudulent or false. On the contrary, the Defendant No.8/D.W.1 has produced Order of Joint Commissioner of B.B.M.P. Dated 20-12- 2012, Ex.D26, that has dismissed the Appeal of Plaintiff and P.W.1, holding that Khata entries of these Defendants are legal and proper, and in Paragraph No.2 of said Order, Ex.D26 has held that lands are not Agriculture and Layout Plan is legal and valid. This also speaks against Plaintiff, and shows Plaintiff's creating false claim, on one or the other false reasons, and hence, this Issue is also answered in the Negative .
12 O.S.No.2446/200910) a) Issue No.4 : The Suit of the Plaintiff is for Declaration that he is owner of Suit Schedule Property, and for Possession. He claims based on his Sale Deed, Ex.P12. Ex.P12, his Sale Deed Dated 18-1-2005 shows the total consideration as Rs.2,15,000/-. As such, the Plaintiff ought to have valued the Suit for said minimum Rs.2,15,000/-, but the Plaintiff has valued the Suit for only Rs.1,000/-, and paid court fee of Rs.100/-.
b) The Court finds that the same improper, and as per Section 24(a) of K.C.F. & S.V.Act, the Plaintiff has to pay court fee on the market value of the Property, i.e., minimum Rs.2,15,000/-, and the same comes to Rs.14,675/-. Deducting Rs.100/- that is already paid, the Plaintiff has to pay balance court fee of Rs.14,575/-, and accordingly, this Issue is answered in the Affirmative.
11)a) Issue No.6 : Learned Advocate for Plaintiff has relied upon following decisions:
1. AIR 1949 Pat. 683 (Krnidan Sarda and Anr. Vs. Sailaja Kanta Mitra and Anr.)
2. (2004) 2 SCC 186 (Saikou Jabbi vs State of Maharashtra) 13 O.S.No.2446/2009
3. AIR 1999 SC 1441 (Vidhyadhar vs. manikrao & Anr.)
4. (2006) Supp (6) SCR 772 (Ritesh Chakarvarti vs. State of Madhya Pradesh)
5. ILR 2007 Kar. 4567 (Yashodhara B.Shetty vs.United Indian Insurance Co. Ltd. and Ors.)
6. MANU/KA/8466/2006 (The Sangli Bank ltd. A Banking Est. under Indian Companies Act, 1913 vs Bhimappa, s/o.Ningappa Jalappagoi and The Special Land Acquisition Officer, Upper Krishna Project)
7. AIR 1995 SC 234 (State of Karnataka and others vs Shankara Textiles Mills Ltd.)
8. ILR 1998 Kar. 3206 (The State Government Employees Co-operative Housing Society Ltd. vs. The Hubi-Dharwad Urban Development Authority)
9. Unreported Judgment in WP No.36031 and 36780 of 2010 Dated 5-1-2011 passed by the Hon'ble High Court of Karnataka (N.G.Sridhar vs D.V.Subramani and ors.)
10. 2014(3) KCCR 2773 (Suresh Bhatia vs. Gullamma)
11. MANU/KA/0626/2015 (B.I.Pinto vs. Venkatagirija and Ors.)
12. AIR 2012 SC 206 (Suraj lamp and Industries Pvt.
Ltd. vs. State of Haryana and Ors.)
13. AIR 2012 SC 2010 (A.Shanmugam vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by its President etc. ) The said decisions are not applicable to the facts and circumstances of this case.
14 O.S.No.2446/2009Learned Advocate for Defendants No.2, 3, 5 and 8 to 12 has relied upon 4 decisions:
1. 2015(3) Kar.L.J. 24 (Smt.Vijayalakshmi vs. Smt.Ugama Bai and another)
2. ILR 2005 KAR 60 (J.M.Narayana and others vs. Corporation of the City of Bangalore, by its Commissioner Office, Bangalore and others)
3. AIR 2015 Kar. 139 Smt.Vijayalakshmi vs. Smt.Ugama Bai & another).
4. 2016(1) KCCR 773 (Gowramma and others vs. P.Lakshminarayana) The ratio laid down in these decisions relating to market value is applicable. In this case the Guidance/Guideline Value has not been produced by any of the parties, and as discussed in Paragraph No.10(b), the Court finds that it is safe to take the value of the Property as shown in the Sale Deed of the Plaintiff himself, and the same has been considered.
b) Issue Nos.1 and 2 having been answered in the Negative, the Plaintiff having failed to prove his title, is not entitled for any reliefs, and accordingly, this Issue is answered in the Negative.
15 O.S.No.2446/200912) Issue No.7 : For the aforesaid reasons, this Court proceeds to pass the following:
ORDER The Suit of the Plaintiff is dismissed with costs.
Draw Decree only after the Plaintiff pays the balance court fee of Rs.14,575/- (Rupees Fourteen Thousand Five Hundred and Seventy Five only).
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in Open Court on this the 4th day of December, 2019).
(Sachin Kaushik.R.N.) III Addl.City Civil & Sessions Judge, Bengaluru.16 O.S.No.2446/2009
SCHEDULE Schedule-1 Property All that piece and parcel of the Property bearing Sy.No.18/9, measuring to an extent of 20 guntas (out of 1 Acre 14 Guntas) situated at Basavanapura Village, K.R.Puram Hobli, Bangalore East Taluk, and bounded on:
East by - Private Property, West by - Sy.No.18/9 of K.M.Rajendran's land North by - Remaining land in Sy.No.18/9 belongs to Theresamma's share.
South by - Land bearing Sy.No.18/8.
ANNEXURE List of witnesses examined for the Plaintiff:
P.W.1 - Rajendra.K.M. List of witnesses examined for the Defendants:
D.W.1 - P.Publius List of documents exhibited for the Plaintiff :
Ex.P1 - Power of attorney executed by the plaintiff Ex.P2 - C.C. of Sale Deed dated 18.1.2005 Ex.P3 - MR Extract Exs.P4 & P5 - RTCs.
Ex.P6 to P8 - Revenue Receipts Ex.P9 - C.C. of Gift Deed dated 9.4.2014 Ex.P10 - C.C. of Registered Settlement Deed dt.9.4.2014 Ex.P11 - Handwritten RTC Ex.P12 - Original Sale Deed dated 18.1.2005 17 O.S.No.2446/2009 Ex.P13 - Mutation Extract Exs.P14 to P25 - RTCs Ex.P26 - Revenue Receipt Ex.P27 - C.C. of Order in W.P.No.9344/2013 Ex.P28 - C.C. of Endorsement of BBMP Ex.P29 - C.C. of Endorsement Ex.P30 - Burial Certificate Exs.P31 to P33 - C.C. of AC orders in RA No.167/2007-2008, 168/2007-2008 and 169/2007-08 Ex.P34 - C.C. of Order sheet in PCR No.82/2008 Ex.P35 - C.C. of Memo filed in C.C.5/2010 Ex.P36 - C.C. of Order in Criminal CCC 5/2010 Ex.P37 - Endorsement of Tahasildhar Ex.P38 - Intimation of RTI Officer Ex.P39 - Endorsement of Deputy Commissioner Exs.P40 to P42 - Computerized RTCs Exs.P43 to P45 - C.C. of IA.6, objection, deposition of PW1 in O.S.No.952/2009 Exs.P46 to P48 - 3 Photographs Exs.P49 & P50 - Negatives Ex.P51 - CD Exs.P52 & P53 - Photographs Receipt List of documents exhibited for the Defendants :
Ex.D1 c.c. of Sale Deed dated 19.12.55 Ex.D2 - c.c. of Registered GPA Exs.D3 to D7-c.c. of Sale Deeds dated 11.10.1988, 8.9.2004 20.11.2004, 16.10.2006, 3.11.1996 Ex.D8 - C.C. of Gift Deed Dated 6.10.2004 Exs.D9 to D2- - C.C. of Sale Deeds Dated 31.8.2008, 2.1.1995, 16.11.2004, 2.12.2004, 29.6.2007, 11.7.88, 27.6.88, 21.12.88, 16.3.88, 8.9.2004, 20.11.2004 and
14.7.2011 Ex.D21 - C.C. of two Phone Bills Ex.D22 - Two Electricity Bills Ex.D23 - Two Domestic Gas Bills Exs.D24 & D25 - C.C. of Judgment and Decree in O.S.No.2265/2011 Ex.D26 - C.C. of order of Joint Commissioner of BBMP Ex.D27 - C.C. of Sale Deed Dated 9-12-1988 of Site No.28 18 O.S.No.2446/2009 Ex.D28 - C.C. of Sale Deed dated 12.8.1988 of site No.37 Ex.D29 - C.C. of Sale Deed Dated 2.7.2003 Ex.D30 - C.C. of Sale Deed Dated 4.8.1988 of site No.38 Ex.D31 - C.C. of Sale Deed Dated 19.8.2009 of site No.38 Ex.D32 - C.C. of Sale Deed Dated 26.8.2010 of site No.38 Ex.D33 - C.C. of Sale Deed Dated 6.12.89 of site No.40 Ex.D34 - C.C. of Sale Deed Dated 14.12.2009 of site No.44 Ex.D35-C.C.of Rectification Deed dt.13.8.2010 of site No.44 Ex.D36 - C.C. of Sale Deed Dated 17.8.2010 of site No.44 Ex.D37 - C.C. of Sale Deed Dated 10.8.1988 of site No.46 Ex.D38 - C.C. of Sale Deed Dated 7.10.1988 of site No.48 Ex.D39 - C.C. of Sale Deed Dated 11.10.88 of site No.49 Ex.D40 - C.C. of Judgment in O.S.No.274/09 Exs.D41 - Photographs of Suit Schedule Property Ex.D41(a) - C.D. (Sachin Kaushik.R.N.) III Addl.City Civil & Sessions Judge, Bengaluru.