Bangalore District Court
O.S./1889/2014 on 28 January, 2022
IN THE COURT OF THE XXXIX ADDITIONAL CITY CIVIL
JUDGE, [CCH-40], AT BANGALORE CITY.
Dated on this the 28th day of January, 2022
-: PRESENT :-
Sri. Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No.2483/2014 Clubbed with
O.S.No.1889/2014
PARTIES IN O.S.NO.2483/2014
Plaintiff :
Sri. Prashanth Chenna Reddy
S/o. Chenna Reddy
Aged about 36 years
No.22, 4th Cross,
Shivramreddy Layout,
Hosapalya, Haralkunte,
Bangalore - 560 068.
Represented by GPA Holder
Smt. C. Saraswathamma
W/o.S.N. Vemanna
Aged about 40 years
R/a. No.26(Old No.105)
DVG Road, Basavanagudi,
Bangalore-560 004.
(By Sri.Narasimha Raju, Advocate)
/ 2 / O.S.No.2483/2014
c/w. 1889/2014
/ VERSUS /
Defendant :
1. Sri. Munithirumalappa
S/o. Late. Yerrappa
Aged about 74 years
R/a. No.43/1, Hosapalya
Hosapalya Main Road
Bommanahalli Post
Bangalore - 560 068.
2. Sri. Sandeep S
S/o. Srinivasa B
Aged about 22 years
R/at. No.43/1, Hosapalya
Hosapalya Main Road
Bommanahalli Post
Bangalore - 560 068.
(D.1 & 2 by Sri.G.Munivannan,
Advocate.)
***
Date of Institution of the suit : 26/3/2014
Nature of suit : Declaration and
Injunction suit
Date of commencement of
evidence : 9/12/2021
/ 3 / O.S.No.2483/2014
c/w. 1889/2014
Date on which the judgment
is pronounced : 28/01/2022
Years Months Days
Duration taken for disposal : 07 10 02
PARTIES IN O.S.NO.1889/2014
Plaintiff :
Sri. Sandeep S
S/o. Srinivas B
Aged about 22 years
R/at. No.43/1,
Hosapalya Main Road
Hosapalya
Bangalore - 560 068.
(By Sri.G.Munivannan, Advocate)
/ VERSUS /
Defendants :
1. Sri. R. Santosh
S/o. Ramaswamy
Aged about 37 years
R/at. No.25, I Main
2nd Cross, Vishnuvardhana Road
Mangammanapalya
Bangalore - 560 068.
2. Sri. S.A.Thangal
S/o. N.A. Thangal
Aged about 39 years
/ 4 / O.S.No.2483/2014
c/w. 1889/2014
R/at. No.14, Vangana Nest,
7th A Cross, Jakkasandra I Block,
Koramangala,
Bangalore - 560 034.
3. Smt. Saraswathammal
W/o. Vemanna
Aged about 40 years
R/at. No.26, Old No.105
DVG Road, Basavanagudi
Bangalore - 560 004.
4. Sri. Prashanth Chenna Reddy
S/o. Chenna Reddy
Aged about 36 years
No.22, 4th Cross,
Shivram Reddy Layout,
Hosapalya, Aralukunte,
Bangalore - 560 068.
(D.1 & 2 - Placed Ex-parte)
(D.3 and 4 by Sri.CR, Advocate.)
***
Date of Institution of the suit : 07.03.2014
Nature of suit : Permanent Injunction
suit
Date of commencement of
evidence : 05.07.2017
/ 5 / O.S.No.2483/2014
c/w. 1889/2014
Date on which the judgment
is pronounced : 28.01.2022
Years Months Days
Duration taken for disposal : 07 10 21
***
COMMON JUDGMENT
The plaintiff in O.S.No.2483/2014 filed the
present suit for the relief of declaration of ownership
and cancellation of gift deed dated 28.8.2013
executed by defendant No.1 in favour of defendant
No.2 and consequential relief of permanent
injunction.
The defendant No.2 in O.S.No.2483/2014 viz.,
Sri.Sandeep S., has filed O.S.No.1889/2014 for the
relief of permanent injunction restraining the
defendants from obstructing his peaceful possession
and enjoyment over the suit schedule property.
/ 6 / O.S.No.2483/2014
c/w. 1889/2014
Plaintiff in O.S.No.2483/2014 is defendant No.4
in O.S.No.1889/2014 and defendant No.2 in
O.S.No.2483/2014 is Plaintiff in O.S.No.1889/2014.
As per the order passed in W.P.
No.13296/2021(GM CPC) on the file of Hon'ble High
Court of Karnataka, Bengaluru O.S.No.1889/2014 is
clubbed with O.S.No.2483/2014.
2. The contention of the plaintiff in
O.S.No.2483/2014 and his written statement in
O.S.No.1889/2014 is that, defendant No.1 -
Munithirumalappa was the absolute owner in
possession of Site No.49, Khata No.50, Assessment
No.48/2 BBMP Khata No.50/48/2/49 measuring East -
West 40 feet and North - South 30 feet situated at
Aralukunte Village, Begur Hobli, Bangalore South
Taluk. The said Munithirumalappa sold the suit
/ 7 / O.S.No.2483/2014
c/w. 1889/2014
schedule property for Rs.1,25,000/- to Smt.Susheela
and has executed GPA and affidavit dated 5.2.1999
in respect of suit schedule property in favour of Smt.
Susheela. On the date of execution of affidavit and
GPA, the possession of the suit schedule property has
been delivered to said Susheela. In turn, the said
Susheela sold the suit schedule property to
R.Santhosh and S.A.Thangal under the registered Sale
Deed dated 10.7.2013. As per the sale deed, the
name of R.Santhosh and S.A.Thangal has been
mutated in the records. In turn, the said R.Santhosh
and S.A.Thangal have sold the suit schedule property
to the plaintiff under the registered Sale Deed dated
8.8.2013. On the date of sale deed itself, the
possession of the property has been delivered to the
plaintiff. As per the sale deed the name of the
plaintiff has been mutated in BBMP records and
/ 8 / O.S.No.2483/2014
c/w. 1889/2014
presently khata is standing in his name. Since
8.8.2013 the plaintiff is in peaceful possession and
enjoyment over the suit schedule property and has
constructed small shed and compound to the suit
schedule property. The defendants are no way
concerned with the suit schedule property.
3. The plaintiff further pleaded that defendant
No.1 has sold the suit schedule property in favour of
Susheela on 5.2.1999 itself. He has no right title or
interest over the suit schedule property. On 6.2.2014
at about 10.30 A.M., the defendants came over the
suit schedule property and tried to trespass into the
suit schedule property by contending that defendant
No.1 has executed registered gift deed dtd 28.8.2013
in favour of defendant No.2 in respect of suit schedule
property. On the strength of said gift deed, the
defendants tried to interfere with plaintiffs peaceful
/ 9 / O.S.No.2483/2014
c/w. 1889/2014
possession and enjoyment over the suit schedule
property. The plaintiff resisted the illegal acts of the
defendants. On verification plaintiff came to know
that defendants in collusion with each other have
created gift deed dated 28.8.2013. The defendant
No.1 has no right to execute the said gift deed in
favour of defendant No.2. The defendants have
created the said gift deed on the basis of created
document. They are claiming right over the suit
schedule property. The defendants are no way
concerned with the suit schedule property and are not
in possession of the suit schedule property. The act of
the defendants are illegal, high handed and
unauthorised. Hence prayed for decreeing
O.S.No.2483/2014 and for dismissal of
O.S.No.1889/2014.
/ 10 / O.S.No.2483/2014
c/w. 1889/2014
4. In response to the suit summons in
O.S.No.1889/2014, the defendants No.3 and 4
appeared through their counsel and have filed their
written statement. The contents of written statement
in O.S.No.2483/2014 and plaint averments in O.S.
No.1889/2014 are one and the same. Though the suit
summons duly served upon the defendant Nos.1 and
2, they remained absent. Hence, the defendant Nos.1
and 2 placed ex-parte.
5. The defendants in O.S.No.2483/2014 and
plaintiff in O.S.No.1889/2014 contended that the
plaintiff is not the owner in possession of the suit
schedule property. The plaintiff and his alleged
vendor colluded with each other and have created the
documents in respect of suit schedule property. The
property claimed by plaintiff is not at all in existence.
The defendant No.1 has not at all executed alleged
/ 11 / O.S.No.2483/2014
c/w. 1889/2014
GPA and affidavit dated 5.2.1999 in favour of
Smt.Susheela. On the basis of said GPA, neither the
plaintiff nor his vendor will get the right, title, interest
and possession over the suit schedule property. The
alleged Sale Deeds dated 10.7.2013 and 8.8.2013 are
fabricated, collusive and created documents. The
plaintiff has filed the present suit only with an
intention to knock off the property. The land bearing
Sy.No.48/2 measuring 3 acres 16 guntas including 9
guntas of kharab land situated at Aralukunte Village,
Begur Hobli, Bangalore South Taluk was the self-
acquired property of defendant No.1 who had
purchased the same under the Sale Deed dated
6.5.1957 from its erstwhile owner. The defendant
No.1 formed the layout in the said land and sold the
sites under the registered Sale Deeds to prospective
purchasers by assigning site numbers and the survey
/ 12 / O.S.No.2483/2014
c/w. 1889/2014
numbers corresponding to the assessment number
and has retained few sites for his family members
and one of such site is site No.49 measuring East -
West 40 feet North - South 30 feet carved in
Sy.No.48/2 khata No.28, Assessment No.48/2 situated
at Aralukunte Village, Begur Hobli, Bangalore South
Taluk. The defendant No.1 had constructed one
square ACC sheet roofed house. The defendant No.1
is in peaceful possession and enjoyment of the said
property. The defendant No.1 by exercising his
proprietary rights over the suit schedule property has
executed registered gift deed dated 28.8.2013 in
favour of defendant No.2 who is the grand-son of
defendant No.1. As per the said gift deed, the name
of the defendant No.2 has been mutated in the BBMP
records and presently khata is standing in the name
of defendant No.2. The defendant No.2 has paid upto
/ 13 / O.S.No.2483/2014
c/w. 1889/2014
date tax to BBMP. Pursuant to the gift deed dated
28.8.2013, the defendant No.2 renovated the old
building and constructed a compound and obtained
electricity vide meter No.8SL119225. The defendant
No.2 is paying electricity charges to the BESCOM.
The plaintiff is no way concerned with the suit
schedule property. On 9.2.2014 some unknown
persons came near the suit schedule property and
committed theft of electricity meter. Therefore, the
defendant No.1 has lodged a complaint with HSR
layout Police Station. The police authorities have
registered a Criminal Case in Crime No.98/2014 for
theft of electricity meter. The plaintiff along with his
henchmen came near the suit schedule property on
15.2.2014 and attempted to demolish the compound
and building and also tried to trespass into the suit
schedule property. The defendants resisted the illegal
/ 14 / O.S.No.2483/2014
c/w. 1889/2014
acts of the plaintiff. If the plaintiff succeeded in his
illegal acts, the defendants would put to hardship.
Hence, prayed for decreeing O.S.No.1889/2014 and
for dismissal of O.S.No.2483/2014.
6. On the basis of the pleadings and
documents of the parties, the following issues have
been framed in O.S.No.2483/2014 :
1) Whether the plaintiff proves that he is
the absolute owner of the suit schedule
property ?
2) Whether the plaintiff proves that
defendants have played fraud and
defendant No.1 executed gift deed
dated 28.8.2013 in favour of defendant
No.2?
3) Whether the plaintiff proves that he is
in lawful possession and enjoyment of
/ 15 / O.S.No.2483/2014
c/w. 1889/2014
the suit schedule property as on the
date of suit ?
4) Whether the plaintiff proves that the
defendants are trying to interfere with
his peaceful possession and enjoyment
over the suit schedule property ?
5) Whether the court fee paid by the
plaintiff is sufficient ?
6) Whether the defendants prove that suit
of the plaintiff is barred by limitation ?
7) What reliefs plaintiff is entitled?
8) What order/decree?
7. Issues in O.S.No.1889/2014 :
1) Whether the plaintiff proves that he is
in lawful possession of the suit schedule
property as on the date of suit ?
/ 16 / O.S.No.2483/2014
c/w. 1889/2014
2) Whether the plaintiff proves the alleged
interference of defendants as stated in
the plaint ?
3) Whether the plaintiff is entitled to the
relief as prayed for ?
4) What order/decree?
8. In order to establish his case in
O.S.No.2483/2014, the GPA holder of plaintiff viz., Smt. C.
Saraswathamma has been examined as PW.1 and got
marked the documents Ex.P.1 to P.41. In order to
establish their defense, the defendant No.2 has been
examined as DW.1 and got marked Ex.D.1 to D.52. While
cross-examining DW.1, the counsel for the plaintiff
confronted the copy of the gift deed dated 29.8.2013,
witness admitted the said document and accordingly
same has been marked as Ex.P.42.
/ 17 / O.S.No.2483/2014
c/w. 1889/2014
9. In order to establish their case in
O.S.No.1889/2014, the plaintiff examined as PW.1 and got
marked the documents Ex.P.1 to P.38. In order to
establish their defense, defendant No.3 has been
examined as DW.1 and got marked the documents Ex.D.1
to D.29.
10. Heard arguments.
11. My findings to the issues in O.S.No.2843/2014
are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : In the affirmative.
Issue No.6 : In the negative.
Issue No.7 : In the negative.
Issue No.8 : As per final order, for
the following:
/ 18 / O.S.No.2483/2014
c/w. 1889/2014
12. My findings to the issues in O.S. No.1889/2014
are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative.
Issue No.4 : As per final order, for
the following:
REASONS
13. ISSUE NO.1 to 3 in O.S.No.2483/2014 and
Issue No.1 in O.S.No.1889/2014 :- These issues are
interconnected with each other. In order to avoid
repetition of facts, evidence and law, these issues are
taken up together for common discussion.
14. Plaintiff in O.S.No.2483/2014 has filed suit for
the relief of declaration of ownership, cancellation of gift
deed dated 28.8.2913 executed by defendant No.1 in
favour of defendant No.2 in respect of suit schedule
property and consequential relief of permanent injunction
/ 19 / O.S.No.2483/2014
c/w. 1889/2014
restraining the defendants from interfering with the
plaintiff's peaceful possession and enjoyment over the
suit schedule property.
15. Plaintiff in O.S.No.1889/2014 has filed the suit
against the defendants for the relief of permanent
injunction restraining the defendants from interfering
with the plaintiff's peaceful possession and enjoyment
over the suit schedule property.
16. For the sake of convenience, the plaintiff in
O.S.No.2483/2014 and defendants in O.S. No.8819/2014
have been referred as plaintiff and plaintiff in
O.S.No.1889/2014 and defendants in O.S.No.2483/2014
have been referred as defendants in this judgment.
17. Advocate for plaintiff argued that defendant
No.1 was the owner of land bearing Sy.No.48/2 measuring
3 acres 16 guntas situated at Aralukunte Village, Begur
/ 20 / O.S.No.2483/2014
c/w. 1889/2014
Hobli, Bengalure South Taluk. Defendant No.1 has
formed the layout in the entire land and sold the sites to
the various persons. Accordingly, site No.49 has been
sold to Smt.Susheela under a GPA and affidavit dated
5.2.1999 for Rs.1,25,000/-. On the date of GPA and
affidavit, the possession of the property has been
delivered to said Smt.Susheela. On the basis of said GPA
and affidavit, said Smt.Sushsela acquired title over the
suit schedule property and has sold the same to
R.Santhosh and S.A.Thangal under a registered sale deed
dated 10.7.2013. In turn, the said Santhosh and Thangal
have sold the property to the plaintiff under registered
Sale Deed dated 8.8.2013. On the date of registration
itself, the possession of the property has been delivered
to the plaintiff. Since 8.8.2013, the plaintiff is in peaceful
possession and enjoyment of the suit schedule property
and has constructed ACC roof house and compound wall
/ 21 / O.S.No.2483/2014
c/w. 1889/2014
to the suit schedule property. He has also obtained
electricity and water connection to the suit schedule
property. The defendants have colluded with each other
and created gift deed dated 28.8.2013 in respect of suit
schedule property. On the basis of created document,
they are obstructing the plaintiff's peaceful possession
and enjoyment over the suit schedule property.
Defendants are no way concerned with the suit schedule
property even then they are making hectic efforts to
dispossess the plaintiff from the suit schedule property.
The plaintiff's sale deed is earlier one. Whereas the gift
deed dated 28.8.2013 is the subsequent document.
Plaintiff has got priority over the defendants. Hence
prayed for decreeing O.S. No.2483/2014 and for dismissal
of O.S.No.1889/2014.
18. Per contra, the counsel for the defendants
argued that plaintiff is not the owner in possession of the
/ 22 / O.S.No.2483/2014
c/w. 1889/2014
suit schedule property. Defendant No.1 has not at all
executed alleged GPA and affidavit dated 5.2.1999 in
favour of Smt.Susheela. The said Susheela, Santhosh
and S.A.Thangal have colluded with each other and have
created the said documents. On the basis of created
documents, plaintiff is claiming rights over the
defendants property. The boundaries mentioned in
Ex.P.27 GPA and Ex.P.28 affidavit dated 5.2.1999 will not
tally with the plaintiff's alleged sale deed dated 8.8.2013.
Plaintiff is no way concerned with the suit schedule
property even then making hectic efforts to trespass into
the suit schedule property. The act of the plaintiff is
illegal, unauthorised and high handed. Hence he prays
for dismissal of O.S.No.2483/2014 and decreeing
O.S.No.1889/2014.
19. On perusal of entire material available on
record, it reveals that defendant No.1 was the owner of
/ 23 / O.S.No.2483/2014
c/w. 1889/2014
land bearing Sy.No.48/2 measuring 3 acres 13 guntas
situated at Aralukunte Village, Bengaluru South Taluk and
has formed the layout in the said land. The plaintiff
claims that defendant No.1 has executed GPA affidavit
dated 5.2.1999 in respect of site No.49 in favour of
Smt.Susheela, whereas defendants denied the execution
of alleged GPA and affidavit. Since the defendants have
denied the plaintiff's title and possession over the suit
schedule property, the entire burden is upon the plaintiff
to prove his title and possession over the suit schedule
property.
20. In order to establish his case, GPA holder of the
plaintiff has been examined as PW.1 and got marked the
documents Exs.P.1 to P.42. The examination-in-chief of
PW.1 is nothing but replica of plaint averments in
O.S.No.2483/2014 and written statement in
O.S.No.1889/2014. The evidence of P.W.1 in O.S.No.
/ 24 / O.S.No.2483/2014
c/w. 1889/2014
2483/2014 and evidence of D.W.1 in O.S.No.1889/2014
are one and the same. P.W.1 deposed that Plaintiff has
executed GPA in her favour on 7.1.2014 as per Ex.P.1.
Defendant No.1 was the owner of site bearing No.49,
Khata No.50, Assessment No.48/2, BBMP Khata
No.50/48/2/49 measuring East-West 40 feet North-South
30 feet situated at Aralukunte Village, Bengaluru South
Taluk. Defendant No.1 has sold the suit schedule property
to one Smt.Susheela on 5.2.1999 for a valid sale
consideration. On 5.2.1999 itself the possession of the
said property has been delivered to said Susheela and
has executed GPA and affidavit as per Ex.P.27 and Ex.P.28
in respect of suit schedule property in favour of Susheela.
On the basis of said GPA and affidavit, the said Susheela
alienated the suit schedule property under a registered
Sale Deed dated 10.7.2013 as per Ex.P.2 in favour of
R.Santhosh and S.A.Thangal. On the date of sale deed
/ 25 / O.S.No.2483/2014
c/w. 1889/2014
itself, the possession of the property has been delivered.
As per sale deed names of the Santhosh and Thangal
have been mutated in the BBMP records and khata was
standing in their names as per Ex.P.5. By exercising their
proprietary rights over the suit schedule property, they
have sold the same to the plaintiff under registered Sale
Deed dated 8.8.2013 as per Ex.P.3. On the date of the
sale deed itself, the possession of the property was
delivered to the plaintiff. As per sale deed, name of the
plaintiff has been mutated in the B.B.M.P. records and
presently khata is standing in his name as per Ex.P.4.
Plaintiff paid up date tax to the B.B.M.P. as per Exs.P.10
and 21. Plaintiff has constructed ACC roof house and
obtained the electricity and water connection to the suit
schedule property. Ex.P.7 is the electricity connection
report, Ex.P.8 is the Test Certificate issued by BESCOM,
Ex.P.9 is the receipt for having purchased the meter.
/ 26 / O.S.No.2483/2014
c/w. 1889/2014
Ex.P.11, P.35 and P.36 are the electricity bills and receipts.
Ex.P.22 is the application submitted to BWSSB for
providing water connection, Ex.P.23 is the provisional
demand note issued by BWSSB. Ex.P.12, P.13, P.33 and
P.34 are the water bill and receipts. Plaintiff has also
obtained the gas connection. Ex.P.14 are the receipts
issued by Ganapa Indane Gas Distributors and Ex.P.15,
P.29 to P31 are the acknowledgments for domestic piped
natural gas connection, issued by RHINO Services for
GAIL Gas Ltd., Exs.P.16 and 17 are the certified copies of
the sale deed in respect of site Nos.29 and 30 executed
by defendant No.1 to Chandrashekhar Reddy. Ex.P.18 is
the Rectification Deed dated 29.5.2015. Ex.P.19 and 20
are the certified copies of encumbrance in respect of site
No.49. Defendants are no way concerned with the suit
schedule property made an attempt to trespass into the
suit schedule property, therefore plaintiff lodged a
/ 27 / O.S.No.2483/2014
c/w. 1889/2014
complaint against the defendants. Ex.P.24 and P.25 are
the certified copies of the complaint and FIR in
C.C.No.12704/2015. Defendant No.1 has sold the site
No.42 to Ravindran and Shashikala as per Ex.P.37. The
defendant No.1 has already alienated all the sites even
then, he is in the nature of claiming false rights over the
said sites. One of the site owners viz., Smt. K.Geetha has
filed O.S.No. 5449/2018 against the present defendant
No.1 and others for the relief of permanent injunction.
The said suit came to be decreed as per Ex.P.38. Ex.P.26
and Ex.P.40 are the photographs in respect of suit
schedule property. Ex.P.41 is the CD in respect of Ex.P.40.
Though defendant No.1 has alienated all the sites formed
in Sy.No.48/2, has allegedly executed gift deed in respect
of suit schedule property in favour of defendant No.1.
The said gift deed is the outcome of fraud. Hence, the
said gift deed is not binding upon the plaintiff. The
/ 28 / O.S.No.2483/2014
c/w. 1889/2014
defendants are no way concerned with the suit schedule
property. Even then, they are trying to interfere with the
plaintiff's possession and enjoyment of the suit schedule
property. The act of the defendants is illegal and
unlawful. Hence prayed for decreeing the suit.
21. Entire case of the plaintiff is based upon
Ex.P.27 GPA and Ex.P.28 - Affidavit dated 5.2.1999
allegedly executed by defendant No.1 in favour of Smt.
Susheela. The defendants have denied the alleged GPA
and affidavit. Since the defendants have denied the due
execution of Ex.P.27 and P.28, the entire burden is upon
the plaintiff to prove the fact that defendant No.1 has
sold the suit schedule property to Smt. Susheela for
Rs.1,25,000/-. Accordingly, he has executed GPA as per
Ex.P.27 and affidavit as per Ex.P.28.
22. Though PW.1 deposed that, plaintiff is the
absolute owner in possession of the suit schedule
/ 29 / O.S.No.2483/2014
c/w. 1889/2014
property, but in his cross-examination at page No.13
deposed that "ನ.ಪ. 2 , 3 ಮತತತ 27 ನನನ ದವವಗಳ ಚನಕತಕಬಬದಗಳಲಲ
ವವತತವಸ ಕಬಡತ ಬರತತತದನ ಎನತನವವದತ ನಜ. ವತದ ಪತತದಲಲ ಮತತತ ನ ಪ 3 ರಲಲ
ನಮಮದಸಲತದ ಚಕತಕಬಬದ ಹತಗಮ ನಪ 2 ಮತತತ 27 ರಲಲ ನಮಮದಸಲತದ
ಚಕತಕಬಬದ ಬನನರನ ಬನನರನ ಇರತತತವನ ಎನತನವವದತ ನಜ." PW.1 further deposed
in his cross-examination at Page No.14 that he has no
personal knowledge about Ex.P.27 GPA and Ex.P.28
affidavit. On perusal of Ex.P.27 GPA, Ex.P.2 sale deed it
reveals that towards the Western side of site No.49, site
No.48 is situated. Whereas in Ex.P.3 sale deed, it is
mentioned that towards Western side of site No.49, site
No.42 is situated. PW.1 deposed that through oversight
site No.42 has been mentioned in Ex.P.27 and Ex.P.2.
Therefore, the said error has been rectified in Ex.P.3 sale
deed. Admittedly, neither the plaintiff nor PW.1 are the
signatories to Ex.P.2 sale deed and Ex.P.27 GPA. PW.1 is
not competent person to say that there is an error in sale
/ 30 / O.S.No.2483/2014
c/w. 1889/2014
deed and GPA i.e., Exs.P.2 and P.27. Admittedly, plaintiff
came to know about the said error on 8.8.2013 itself.
Even after coming to know about the said discrepancy
regarding the western boundary of Site No.49, the vendor
of the plaintiff not initiated any action for rectification of
the sale deed. Plaintiff claims that towards the western
side of site No.49, site No.42 is situated. Plaintiff is
claiming his rights on the basis of Ex.P.2 sale deed dated
1.7.2013 allegedly executed by Smt. Susheela in favour
of R.Santhosh and Thangal and Ex.P.27 GPA allegedly
executed by defendant No.1 in favour of Smt. Susheela.
As discussed supra, the boundary mentioned in Ex.P.27
and Ex.P.2 are not tally with Ex.P.3 sale deed. PW.1 also
in his cross-examination unequivocally admitted that
there is variance in the boundaries.
23. It is the case of the plaintiff that defendant
No.1 has sold the suit schedule property to Smt.Susheela
/ 31 / O.S.No.2483/2014
c/w. 1889/2014
for Rs.1,25,000/- and has executed Ex.P.28 affidavit and
Ex.P.27 GPA on 5.2.1999. On the basis of said GPA and
affidavit, Smt.Susheela has sold site No.49 to R.Santhosh
and Thangal as per Ex.P.2 sale deed dated 10.7.2013.
But, in Ex.P.2 - sale deed, there is no reference regarding
Rs.1,25,000/- paid by Smt.Susheela to defendant No.1
Munithirumalappa.
24. In Ex.P.28 - Affidavit, it is mentioned that
defendant No.1 has received 1,25,000/- towards the sale
consideration amount. In Ex.P.28, at page No.2 para No.5
it is mentioned that "I further submit that I shall execute
a proper sale deed in favour of the purchaser or her
nominee/s or any person/s as and when called upon by
the purchaser at the time of registrations of the sale
deed." If at all Smt.Susheela has paid entire sale
consideration amount to defendant No.1, she can very
well got executed the sale deed in her name or she can
/ 32 / O.S.No.2483/2014
c/w. 1889/2014
very well file a suit for specific performance against the
defendant No.1 on the basis of Ex.P.28, but she has not
done so. Besides, defendants have denied the very
execution of Ex.P.27 GPA and Ex.P.28 affidavit.
25. The counsel for the plaintiff vehemently argued
that defendant No.1 has sold the suit schedule property
to one Smt. Susheela under GPA and affidavit as per
Ex.P.27 and Ex.P.28. As per Section 85 of the Indian
Evidence Act, the court shall presume that every
document purporting to be a power of attorney, and to
have been executed before, and authorized by a notary
public. Hence, Ex.P.27 has got presumptive value and
defendants cannot deny Ex.P.27.
26. There is no dispute regarding the presumption
of power of attorney as enumerated under Section 85 of
Indian Evidence Act, but in this case, the defendants
/ 33 / O.S.No.2483/2014
c/w. 1889/2014
have denied the very execution of GPA dated 5.2.1999.
The counsel for the defendants argued that defendant
No.1 has not at all executed Ex.P.27 and P.28. The
plaintiff, the vendors of the plaintiff and said Susheela
have colluded with each other and created Ex.P.27 and
Ex.P.28. On the basis of created document, they cannot
claim rights over the suit schedule property. Accordingly,
the Assistant Treasury Officer has issued Ex.D.6 stating
that K.Shivashankar is not the licensed stamp vendor and
Ex.P.27 stamp papers have not been distributed to the
said K.Shivashankar.
27. Plaintiff claims that defendant No.1 has
executed GPA and affidavit as per Exs.P.27 and P.28 in
favour of Smt. Susheela. Defendant No.1 filed written
statement and has denied the very execution of Exs.P.27
and P.28. Initial burden is on the defendants to rebut the
presumption as enumerated under Section 85 of the
/ 34 / O.S.No.2483/2014
c/w. 1889/2014
Indian Evidence Act. The defendants by producing Ex.D.6
- Endorsement issued by Treasury Department, they have
discharged their burden. Once the defendants
discharged their burden, the onus shifts upon the plaintiff
to disprove the same. Plaintiff has not adduced reliable
evidence to discharge his onus.
28. Advocate for plaintiff argued that the Treasury
officials have no authority to issue an endorsement as
per Ex.D.6 and on the basis of Ex.D.6, the court cannot
come to the conclusion that Exs.P.27 and P.28 are the
created documents.
29. On perusal of Ex.P.27, it reveals that one
K.Shivashankar has sold the stamp paper on 5.2.1999.
But the defendants have denied the alleged Ex.P.27
alleged GPA. On perusal of Ex.D.6, it reveals that the
stamp paper has not been distributed by the Treasury
/ 35 / O.S.No.2483/2014
c/w. 1889/2014
Department and Sri.K.Shivashankar was not the licensed
stamp vendor. Admittedly, Ex.D.6 - endorsement has
been obtained under the RTI Act. The document obtained
under the RTI Act can be admitted in evidence. It is well
settled law that, response letter from RTI officials are
primary evidence of public documents and should
similarly be admitted in evidence without any
corroborative oral evidence. Ex.D.6 has got presumptive
value. The said document has been issued by the
Government officials in discharge of their official duty.
Hence on perusal of Ex.P.27 and Ex.D.6, it reveals that
defendant No.1 has not executed the alleged GPA.
Exs.P.27 and 28 are created documents.
30. The advocate for plaintiff argued that
defendant No.1 has sold the sites formed in Sy.No.48/2 to
various persons under GPA and subsequently he has
executed gift deed in respect of the said properties in
/ 36 / O.S.No.2483/2014
c/w. 1889/2014
favour of his wife and grand-children. Defendant No.1 is
in the nature of harassing the purchasers. In support of
his arguments, he has relied upon Exs.P.16 to18, 37 and
42. On perusal of Exs.P.16 to 18, 37 and 42, they are no
way concerned with the suit schedule property. If at all
the purchasers have affected from the acts of defendant
No.1, they can very well initiate civil or criminal action
against their vendors. The said documents are no way
concerned with the suit schedule property.
31. Plaintiff much relied upon Exs.P.10, P.21 Tax
Paid Receipts, Exs.P.11, 35 and 36 Electricity Bills,
Exs.P.12, 13, 22, 23, 33 and 34 Water Bills, Gas receipts
Exs.P.14, 15, 29 to 32 and Ex.P.26 photographs. On
perusal of said documents, it reveals that they have been
obtained subsequent to filing of suits. Besides, it is well
settled law that, tax paid receipts, electricity, water,
/ 37 / O.S.No.2483/2014
c/w. 1889/2014
photographs and gas bills will not establish title and
possession of the plaintiff over the suit schedule property.
32. Plaintiff much relied upon one more document
Ex.P.38 - Judgment and decree passed in O.S.
No.5449/2018 on the file of 19th Addl. City Civil and
Sessions Judge, Bengaluru. On perusal of Ex.P.38, it
reveals that, one K.Geetha has filed the said suit against
the present defendants and another for the relief of
permanent injunction. The said suit came to be decreed
on 11.11.2021. It is well settled law that judgment and
decree passed in a suit for permanent injunction is
binding upon the parties to that suit. The subject matter
of the present suit and the Subject matter of
O.S.No.5449/2018 are altogether different and the
present plaintiff is no way concerned with the said suit.
Besides, PW.1 herself admitted in her cross-examination
/ 38 / O.S.No.2483/2014
c/w. 1889/2014
at page No.20 that the judgment and decree passed in
O.S.No.5449/2018 has been stayed by the Hon'ble High
Court of Karnataka and appeal is pending for
consideration.
33. Advocate for plaintiff argued that plaintiff is in
possession of the suit schedule property, the defendants
are no way concerned with the suit schedule property,
even then they are obstructing the plaintiff's peaceful
possession and enjoyment over the suit schedule
property, therefore, plaintiff lodged complaint as per
Exs.P.24 and P.25, FIR and complaint in C.C.
No.12704/2015. On perusal of Exs.P.24 and P.25 it
reveals that PW.1 has lodged a complaint against the
present defendant No.2 and others for the offenses
punishable under Sections 323, 427, 504 R/w. 34 of IPC. It
is well settled law that mere setting into the motion of
criminal law will not establish the plaintiff's possession
/ 39 / O.S.No.2483/2014
c/w. 1889/2014
over the suit schedule property. Besides, criminal act is
different from civil rights. Hence Exs.P.24 and P.25 will
not come to the aid of plaintiff.
34. In order to establish their defense, defendant
No.2 has been examined as DW.1 and got marked the
documents Exs.D.1 to D.52. The evidence of D.W.1 in
O.S.No.2483/2014 and evidence of P.W.1 in
O.S.No.1889/2014 are one and the same. The
examination in chief of DW.1 is replica of written
statement in O.S.No.2483/2014 and plaint in
O.S.No.1889/2014. DW.1 deposed that defendant No.1
was the absolute owner of land bearing Sy.No.48/2. The
defendant No.1 has purchased the said land on 6.5.1957
as per Ex.D.2. As per sale deed, name of the defendant
No.1 has been mutated in the revenue records.
Accordingly, M.R.No.3/1971-72 has been certified as per
Ex.D.3. Accordingly, RTC in respect of said land was
/ 40 / O.S.No.2483/2014
c/w. 1889/2014
standing in the name of defendant No.1 as per Exs.D.17
to D.39. Defendant No.1 has formed the sites in the said
land. Accordingly, he has executed gift deed in respect
of Site No.49 in his favour as per Ex.D.1. On the date of
gift deed, the possession of the property has been
delivered. Since 28.8.2013, he is in peaceful possession
and enjoyment of the suit schedule property. As per gift
deed, his name has been entered in the B.B.M.P. records
and presently khata is standing in his name as per
Ex.D.4. They paid up to date tax to B.B.M.P. as per
Exs.D.5 and Exs.D. 7 to 16. Exs.D.40, and 41 are the
certified copy of E.C. in respect of Site No.49. He
obtained the electricity connection to the suit schedule
property as per Exs.D.42 and D.43 and has paid the
Electricity bills as per Exs.D.44 to D.48. Plaintiff is no
way concerned with the suit schedule property, even
then, making false claim over the suit schedule property
/ 41 / O.S.No.2483/2014
c/w. 1889/2014
and also tried to interfere with their possession and even
the plaintiff and his henchmen have stolen the electricity
meter installed in the suit schedule property. Therefore,
he has lodged a complaint. The police authorities have
issued acknowledgment as per Ex.P.49 and the police
authorities have conducted the spot mahazar on
12.2.2014 as per Ex.D.50. Ex.D.51 are the certified
copies of the photographs and Ex.D.52 are the certified
copies of the receipt issued by KODAK photo studio,
Bengaluru. Plaintiff is no way concerned with the suit
schedule property, even then, he is trying to interfere
with the peaceful possession and enjoyment over the suit
schedule property. Hence, he prayed for decreeing the
O.S.No.1889/2014 and dismissal of O.S.No.2483/2014.
35. The counsel for the plaintiff cross-examined
DW.1 in length. Witness adhered to his original version.
The counsel for the plaintiff made a suggestion that
/ 42 / O.S.No.2483/2014
c/w. 1889/2014
defendant No.1 has sold the suit schedule property to
Smt.Susheelamma under GPA and affidavit. In turn, said
Susheela sold suit schedule property to R.Santhosh and
Thangal as per ex.P.2 sale deed. The said Santhosh and
Thangal sold the suit schedule property to plaintiff as per
Ex.P.3- Sale Deed, witness denied the said suggestion.
DW.1 admitted in his cross-examination that they have
not initiated any action against Santhosh and Thangal for
having played fraud . The counsel for the plaintiff further
made a suggestion that plaintiff is in possession of suit
schedule property. Witness denied the said suggestion.
Except this, nothing worth has been elicited from DW.1 in
order to disbelieve the version of the defendants.
36. It is an admitted fact that defendant No.1 was
the owner of suit schedule property. On perusal of
Ex.D.1 it reveals that defendant No.1 by exercising his
proprietory rights has executed gift deed in respect of Site
/ 43 / O.S.No.2483/2014
c/w. 1889/2014
No.49 in favour of defendant No.2. Admittedly, Ex.D.1 is a
registered document, it has got presumption regarding
the document. On perusal of Exs.D.42 to 48 it reveals
that defendant No.2 has obtained the electricity
connection to the suit schedule property much prior to
the filing of the suit. P.W.1 also in her cross-examination
admitted that R.R. No.8 SL119225 is in the name of
defendant No.2. Further plaintiff himself produced Ex.P.39
endorsement issued by BESCOM. On perusal of Ex.P.39 it
reveals that said R.R. No. 8 SL119225 is standing in the
name of defendant No.2. Evidence of P.W.1, D.W.1
coupled with Ex.P.39, Exs.D.1, 4 to 6 and Exs.D.42 to 48
clearly goes to show that defendant No.2 is in possession
of suit schedule property.
37. As discussed supra the boundaries mentioned
in the plaint schedule are not tally with the boundaries
mentioned in the Ex.P.27- GPA, Ex.P.28- Affidavit, Ex.P.2
/ 44 / O.S.No.2483/2014
c/w. 1889/2014
- Plaintiff's Vendor Sale Deed. In order to grant the relief,
the identity of the property and boundaries are to be
proved. But, the plaintiff has utterly failed to prove the
identity of the property and even the boundaries
mentioned in the plaint will not tally with the earlier sale
deed. Admittedly, there is dispute regarding identity of
the property. In a decision reported in JT 2000 (7) SC
378, (The Commissioner, sales Tax, U.P. Lucknow Vs.
M/s.Prag Ice & Oil Mills) the Hon'ble Apex Court held
that, "Court cannot grant decree without getting the
identity of the land." The said decision is aptly applicable
to the case in hand. In this case also, the plaintiff has
utterly failed to prove the identity of the property.
38. The counsel for the plaintiff argued that
plaintiffs sale deed is earlier one as per transfer of
properties act, plaintiff has got priority rights over
defendant No.2 and in support of his arguments he relied
/ 45 / O.S.No.2483/2014
c/w. 1889/2014
upon following decisions :
1) ILR 2015 Karnataka 5767 in case of
Mahadevappa since deceased through his LR's
vs. Uday Kumar wherein it is held as under:
"Section 48 of the Transfer of Property Act
determines the priority, when there are
successive transfers. The provision contains
important principle that no man can convey a
title better than what he himself possesses.
If a person effects a transfer of property, in
law, he cannot, thereafter, deal with the
same property, already transferred by him,
ignoring the rights already created by the
earlier transfer effected."
2) AIR 2019 Karnataka 181 in case of
Muttukrishna Naidu v/s. Abdul Sattar and Anr,
wherein it is held as under:
"Transfer of Property Act (4 of 1882), S.48 -
Priority of rights created by transfer - Claim
for ownership - Two sale deeds registered in
respect of single plot - Documents on record
/ 46 / O.S.No.2483/2014
c/w. 1889/2014
showing plaintiff is earlier purchaser of suit
property - Sale deed in favour of plaintiff,
established - whereas authenticity of vendor
Society and genuineness of acquisition of suit
property by Society, doubtful - Plaintiff
entitled for ownership of suit property. "
3) AIR 1973 Mysore 276 in case of
Azeezulla Sheriff and Others Village.
Bhabhutimu, wherein it is held as under:
"A compulsorily registrable sale deed
executed earlier in point of time, will when
registered, prevail over the subsequent sale
deeds even though such latter deeds were
registered at an earlier point of time. "
4) AIR 2008 Supreme Court 1541 in case of
Thiruvengada Pillai Village. Navaneethammal and
Anr., wherein it is held as under:
"The Stamp Act is a fiscal enactment
intended to secure revenue for the State. In
the absence of any Rule requiring
/ 47 / O.S.No.2483/2014
c/w. 1889/2014
consecutively numbered stamp papers
purchased on the same day, being used for
an instrument which is not intended to be
registered, a document cannot be termed as
invalid merely because it is written on two
stamp papers purchased by the same person
on different dates. Even assuming that use of
such stamp papers is an irregularity, the court
can only deem the document to be not
properly stamped, but cannot, only on that
ground, hold the document to be invalid.
Even if an agreement is not executed on
requisite stamp paper, it is admissible in
evidence on payment of duty and penalty
under section 35 or 37 of the Indian Stamp
Act, 1899. If an agreement executed on a
plain paper could be admitted in evidence by
paying duty and penalty, there is no reason
why an agreement executed on two stamp
papers, even assuming that they were
defective, cannot be accepted on payment of
duty and penalty. But admissibility of a
document into evidence and proof of
/ 48 / O.S.No.2483/2014
c/w. 1889/2014
genuineness of such document are different
issues."
5) 1987 SCC Online Kar 67: (1987) 2 Kant
LJ 379 in case of Tibba Boyi @ Kariya & Others
Village. K. Venkatappa, wherein it is held as
under:
"S.26 only enables the parties or their
representatives-in-interest to a contract or
other instrument in writing to institute a suit
to have the mistake crept in the contract or
instrument in writing as a result of which it
does not express their real intention, rectified
on the ground of fraud or mutual mistake -
However, S.26 does not take away the
jurisdiction of civil court to declare a title to a
particular property on proof of title - thus, a
decree for declaration of title can be granted
even without the rectification of the mistake
in the document on the basis of which the
title is sought, if the title is proved in spite of
such mistake by evidence adduced - If
without seeking the relief of rectification, the
/ 49 / O.S.No.2483/2014
c/w. 1889/2014
plaintiff is able to prove his title to the
schedule property, it is permissible in law and
the Court has the jurisdiction to pass a decree
declaring the title of the plaintiff to the
schedule property as claimed in the plaint -
Relief of declaration of title is an independent
relief, and it does not depend upon S.26 -
Thus, S.26 does not and cannot be held to
take away the jurisdiction of the Court or
come in the way of the Court to pass a decree
declaring the title of the plaintiff even without
the rectification of the mistake crept in the
document of title.
6) 1185 INDIAN LAW REPORTS 1988
Karnataka, wherein it is held as under:
The endorsements made in the sale deed
indisputably disclose that the same are not in
accordance with the mandatory requirement
of Section 59 of the Registration Act. The Sub-
Registrar, had not complied with the
mandatory requirement of Section 59(c) of
the Act, since his attestation at the most
/ 50 / O.S.No.2483/2014
c/w. 1889/2014
important places in the document are
missing. In the suit document the attestation
of the Sub Registrar is not found either at the
place where the plaintiff and the first
defendant had affixed their thumb
impressions nor at the place where the
plaintiff and defendant No.2 are alleged to
have received the sale consideration. The
only. attestation of the Sub-Registrar is found
at the endorsement made for identifying the
person who wrote the document and at the
endorsement for having entered the
document.... When the plaintiff had taken a
specific stand in the plaint and also deposed
to the fact that there' was no execution of the
suit document by her, the burden was cast on
defendant-1 to prove that the document was
really executed in accordance with the
mandatory requirement of Section 58, of the
Act. The Sub-Registrar was not examined to
prove execution. The document is proof of the
fact that there was no execution as required
under Section 58 of the Act and no
/ 51 / O.S.No.2483/2014
c/w. 1889/2014
consideration passed under it. There fore, the
case of the plaintiff that the document is void
and is not binding on her is fully established
by her oral evidence and also by suit
document itself."
7) (1972) 4 Supreme Court Cases 562 in
case of Sait Tarajee Khimchand and Others
Village. Yelamarti Satyam @ Satteyya and
others, wherein it is held as under,
"Mere marking of exhibit does not give
proof of document."
8) AIR 2006 SIKKIM 37, in case of Chewag
Dorjee Lama Village. Lerap Dorjee Bhutia and
Ors, wherein it is held as under:
"In case of a conflict between dimension and
boundaries of a given land in dispute, it is
the boundary which prevails and where the
boundary described is partly correct and
partly incorrect, the incorrect part of the
/ 52 / O.S.No.2483/2014
c/w. 1889/2014
description may be ignored, and if what
remains after rejecting the erroneous part is
sufficient to identify the thing and enable
the Court to ascertain with legal certainty
the property to which the instrument really
applies, then the instrument would be
allowed to take effect. "
39. There is no dispute regarding the ratio laid
down by the Hon'ble Apex Court, Hon'ble High Court of
Karnataka, Hon'ble high court of Sikkim. As discussed
supra, plaintiff has utterly failed to prove that defendant
No.1 has executed GPA as per Ex.P.27 in favour of
Smt.Susheela. Hence, said Smt.Susheela has no authority
to execute sale deed as per Ex.P.2 in favour of R.Santosh
and Thangal. In turn said R.Santosh and Thangal have no
authority to execute sale deed as per Ex.P.3 in favour of
plaintiff. Accordingly plaintiff will not get any title or
possession over the suit schedule property on the basis
/ 53 / O.S.No.2483/2014
c/w. 1889/2014
of alleged sale deed. Hence, the said decision will not
come to the aid of plaintiff.
40. Though the counsel for the plaintiff argued that
defendants are no way concerned with suit schedule
property and even then they are making false claim, in
order to establish their rights over suit schedule property
the defendants have not produced reliable documents,
hence plaintiff is entitled for the relief.
41. That in a decision reported in 2004 (1) KCCR
662, (K.Gopala Reddy (deceased) by LRs Vs.
Suryanarayana and others) the Hon'ble High Court of
Karnataka held that, "Whenever a party approach the
Court for a relief based on the pleading and issue, he has
to prove his case, a suit has to be decided based on
merits and demerits of the party who approaches the
Court. Weakness of the defendant cannot be considered
as a trump card of the plaintiff."
/ 54 / O.S.No.2483/2014
c/w. 1889/2014
42. In another decision reported in LAWS (KAR)
2017 494 (Sathyamma Vs. Kempamma), in which the
Hon'ble High Court of Karnataka clearly held that: "The
weakness or lapses on the part of the defendant cannot
be taken as filling up of the blanks or lapses, lacunas in
the case of the plaintiff. The plaintiff has to prove his
case on his own". In this case also the plaintiff has to
prove his lawful claim over the suit schedule property.
But, the plaintiff utterly failed to prove his lawful claim
over the suit schedule property. Hence, the above said
decisions are aptly applicable to the case in hand.
43. When two parties are there before the court
contesting on the same property, the court is required to
see as to who has better title over the property which can
be proved on the basis of oral as well as documentary
evidence out of which, documentary evidence has
greater value and weight over the oral evidence. In this
/ 55 / O.S.No.2483/2014
c/w. 1889/2014
case, plaintiff wants to establish his title on the basis of
oral evidence only as Exs.P.27 and 28 are unregistered
documents. As discussed supra GPA allegedly executed
by defendant No. 1 in favour of Smt. Susheela has not
been duly proved on the other hand, the Ex.D.1 - Gift
Deed by the Defendant No.1 in favour defendant No.2
has been proved. In view of the preponderance of
probability, the non proving of the Alleged GPA dated 5-2-
1999 by the defendant No. 1 casts a doubt on its veracity
as claimed by the plaintiff.
44. Thus plaintiff has to show that the property
referred in the sale deed by a wrong boundaries. Where
a plaint alleges a mutual mistake of fact extrinsic
evidence of such mistake is admissible. The burden of
proof lies heavily on the person seeking relief.
45. Besides, granting the relief of declaration is
discretionary one, while granting the relief of declaration,
/ 56 / O.S.No.2483/2014
c/w. 1889/2014
Court has to look into the comparative hardship. On
perusal of Ex.D.1 - gift deed and Exs.D.40 to D.48, E.C.,
Electricity Sanction Letter, Test Certificates etc., It clearly
reveals that the defendants are in peaceful possession
and enjoyment of Site No.49.
46. In a decision reported in ILR 1980 Kar 103
(Poojari Puttaiah v. Kempaiah ) the Hon'ble High Court of
Karnataka held that, "In a suit for declaration of
ownership and permanent injunction, not only the
plaintiff must prove his title, but also his possession over
the property, on the date of the suit. When the plaintiff is
not in possession of the property on the date of the suit,
the relief of permanent injunction is not an appropriate
consequential relief. The appropriate relief consequential
to declaration of ownership, is relief of possession of the
property. Where the plaintiff is out of possession of the
/ 57 / O.S.No.2483/2014
c/w. 1889/2014
land and does not seek relief for possession, a mere suit
for declaration is not maintainable.
47. It is well settled law that even if the plaintiff
comes to Court asserting that he is in possession and
that if it is found after trial that he was not in possession
on the date of the suit, even then, the suit for declaration
and permanent injunction is liable to be dismissed as not
maintainable, as no decree for permanent injunction can
be granted if the plaintiff is not in possession on the date
of the suit. Therefore, a suit for declaration of title and
permanent injunction, by the plaintiff who is not in
possession on the date of the suit, when he is able to
seek further relief of recovery of possession also, omits to
do so.
48. As per Section 34 of the Specific Relief Act, in a
suit for declaration the plaintiff has to make out a case
by evidence that proves their legal character/rights as to
/ 58 / O.S.No.2483/2014
c/w. 1889/2014
the property, he cannot derive any strength from
weakness of the case of the person denying his rights.
The initial burden of proof always rests on the person
asserting the affirmative of an issue. Who approaches
Court for relief has to prove those facts. Under Section
101 of the Indian Evidence Act burden is on the plaintiff
to prove his case, only after satisfying the initial burden,
the onus shifts on the defendants to disprove the
plaintiffs' case under Section 102 of Evidence Act.
49. Besides, the plaintiffs have utterly failed to
adduce evidence of neighbours of the suit schedule
property in order to prove that they were in possession
of the suit schedule property. Non-examination of
neighbouring witnesses is fatal to the plaintiffs' case.
Therefore, as per Section 114 (g) of the Evidence Act, an
adverse inference is drawn against the plaintiffs for non-
examination of material witnesses.
/ 59 / O.S.No.2483/2014
c/w. 1889/2014
50. The plaintiff claims that, the defendant No.2
played fraud on defendant No.6 and got executed gift
deed as per Ex.D.1. The plaintiff has failed to prove that
the defendants have played fraud and got executed gift
deed as per Ex.D.1. Besides, as per Order VI Rule 4 of
C.P.C. in case of fraud, undue influence, etc., the
pleadings must be specific regarding the same. But, the
plaintiff has not pleaded regarding the fraud or undue
influence, etc., in his plaint. That, admittedly, defendant
No.1 has executed a registered Gift Deed as per Ex.D.1 in
favour of defendant No.2 i.e., much prior to filing of the
present suit. The plaintiff being well aware about the
execution of gift deed - Ex.D.1, there is no pleadings and
evidence as regards to the fact that the defendant No.1
had executed gift deed in favour of defendant No.2 with
an intention to defeat the claim of the plaintiff over the
suit schedule property. It is well settled law that, without
/ 60 / O.S.No.2483/2014
c/w. 1889/2014
specific pleadings, evidence and documents, Court
cannot grant the relief. That, in a decision reported in
2002 (3) KLJ 512 [Patel Thippeswamy Vs.
Smt.Gangamma and others] in which the Hon'ble High
Court of Karnataka clearly held that, "A party pleading
fraud and misrepresentation in respect of a transaction
must give material particulars of allegations and in
absence of such particulars, his plea is to be rejected.
The defendants contended that the gift deed was got
executed by misrepresentation and playing fraud on the
third defendant. Defendants did not furnish the
particulars of alleged misrepresentation and fraud. In
the absence of particulars it cannot be held that the gift
deed was obtained by misrepresentation." In another
decision reported in (2011) 12 Supreme Court Cases
18 [Saradamani Kandappan Vs. S.Rajalaxmi and others]
in which the Hon'ble Apex Court held at para No.62 that,
/ 61 / O.S.No.2483/2014
c/w. 1889/2014
"Whenever a party wants to put forth a contention of
fraud, it has to be specifically pleaded and proved. It is
significant that plaint does not allege any fraud by the
defendants. Evidence shows that before the agreement
was entered the purchaser's husband and legal advisor
had examined the xerox copies of the title deeds and
satisfied themselves about the title of the vendors. The
appellant in her evidence clearly admits that xerox
copies of the title deeds were shown to her husband.
The agreement of sale provided that the sale would
depend upon the purchasers getting satisfied about the
title of the vendors." The said decisions are squarely
applicable to the case in hand. In this case also plaintiff
has made stray allegation without any proper pleadings
and proof as regards to the alleged fraud. Hence,
without specific pleadings and proof, the Court cannot
grant the relief. Plaintiff has utterly failed to prove that
/ 62 / O.S.No.2483/2014
c/w. 1889/2014
the said Gift Deed is the outcome of mis-representation,
fraud, etc.,
51. There is no dispute regarding ownership of
defendant No.1 Tirumalappa. The evidence has to be
weighed and not counted. When both the parties
have contested the matter, the question of onus
fades into oblivion and the entire evidence has to be
appreciated as a whole. While appreciating the
evidence, it is the duty of the court to sift the grain
from the chaff. The court has to appreciate the
evidence in its total gist and not to pick from some
scattered sense, else one may miss the wood for the
trees. On perusal of entire material available on
record, it shows that the site No.49 was originally
belongs to defendant No.1 and he has executed
registered gift deed in favour of defendant No.2
Sandeep. In this case, there is specific averment to
/ 63 / O.S.No.2483/2014
c/w. 1889/2014
the flow of title of defendant No.2 and defendants
have produced sufficient materials to show their
possession. On the other hand, plaintiff has failed to
disprove the case of the defendant. Therefore, this
court is of the opinion that defendants are in peaceful
possession and enjoyment over site No.49.
Accordingly, I answer Issue No. 1 to 3 in O.S.
No.2483/2014 in the negative and Issue No. 1 in O.S.
No.1889/2014 in the affirmative.
52. Issue No.4 in O.S.No.2483/2014:- As
discussed supra plaintiff has utterly failed to prove is
law-full possession over the suit schedule property as
on the date of suit and hence the question of
interference by the defendants does not arise at all.
Accordingly, I answer Issue No.4 in O.S.No.2483/2014
in the negative.
/ 64 / O.S.No.2483/2014
c/w. 1889/2014
53. Issue No.5 in O.S.No.2483/2014 :- The
defendants in their written statement contended that
the court fee paid by the plaintiff is insufficient.
Admittedly, initially plaintiff has filed suit for the relief
of permanent injunction and accordingly paid the
court fee of Rs.25/-. Subsequently, plaintiff filed
I.A.No.II under Order VI Rule 17 C.P.C. for amendment
of plaint claiming the additional relief of declaration.
The said application came to be allowed on
8.11.2021. After allowing the application for
amendment of plaint, plaintiff filed the amended
plaint and has also paid the court fee as per Section
24 of Karnataka Court Fees and Suits Valuation Act on
market value of the suit schedule property i.e.,
Rs.1,07,000/-. Though the defendants contended in
their written statement that the court fee paid by the
plaintiff is insufficient, but have failed to prove that
/ 65 / O.S.No.2483/2014
c/w. 1889/2014
the court fee paid by the plaintiff is insufficient. Even
the defendants have not adduced any evidence
regarding the court fee. There is no material on
record in order to come to the conclusion that the
court fee paid by the plaintiff is insufficient. Hence,
the defendants have utterly failed to prove that the
court fee paid by the plaintiff is insufficient.
Accordingly, I answer Issue No.5 in O.S.No.2483/2014
in the affirmative.
54. Issue No.6 in O.S.No.2483/2014 :-
Plaintiff has filed the present suit for the relief of
declaration and consequential relief of injunction in
respect of suit schedule property. Defendants in their
written statements contended that the suit of the
plaintiff is barred by limitation. Though the
defendants have contended that the suit of the
plaintiffs is barred by limitation, but they have not
/ 66 / O.S.No.2483/2014
c/w. 1889/2014
produce any evidence in order to prove that suit of
the plaintiff is barred by limitation. As per Article 58 of
the Limitation Act, 1963 in order to claim the relief of
declaration the limitation is 3 years when the right to
sue first accrues. Plaintiff claims that he has
purchased suit schedule property on 08-08-2013 as
per Ex.P.3. Admittedly plaintiff has filed the present
suit on 26-03-2014 i.e.,within 3 years from the date of
Ex.P.3 - Sale Deed. Hence the suit of the plaintiff is
within limitation. Accordingly, I answer Issue No.6 in
O. S. No. 2483/2014 in the negative.
55. Issue No.2 in O.S.No.1889/2014 :- The
defendants in O.S.No.1889/2014 have denied the
possession of plaintiff over the suit schedule property.
The denial of plaintiff's possession over the suit
schedule property itself amounts to interference by
the defendants.
/ 67 / O.S.No.2483/2014
c/w. 1889/2014
56. D.W.1 clearly deposed that, he is in
possession of the suit schedule property, the
defendants in O.S.No.1889/2014 are trying to
dispossess plaintiff from the suit schedule property.
The evidence of D.W.1 in O. So No. 2483/2014 is in
tact. There is no material to disbelieve the version of
D.W.1. Evidence adduced by D.W.1 shows that there
is apprehension that the defendants in O.S.
No.1889/2014 may dispossess him unlawfully from
the suit schedule property. This apprehension of
dispossession at the ends of defendants is sufficient
for grant of a decree for permanent injunction against
defendants in O.S.No.1889/2014 as sought.
57. In the decision reported in 2014 (1) KCCR
391 (Smt.Narasamma and others Vs. D.S.Narasi
Reddy and another.) in which the Hon'ble High Court
/ 68 / O.S.No.2483/2014
c/w. 1889/2014
of Karnataka held that, "Where there is merely an
interference with the plaintiff's lawful possession or
threat of dispossession, it is sufficient to sue for an
injunction." The above said decision is aptly
applicable to the case in hand. The plaintiff in
O.S.No.1889/2014 has proved that he is in possession
of the suit schedule property and further proved the
obstruction made by the defendants. Hence, the
plaintiff in O.S.No.1889/2014 is entitled for the relief
claimed. Accordingly, I answer Issue No.2 In O.S. No.
1889/2014 in the affirmative.
58. Issue No.7 in O.S.No.2483/2014 :- As
discussed supra the plaintiff has utterly failed to
prove his title and possession over the suit schedule
property, hence he is not entitled for any relief.
Accordingly, I answer Issue No.7 in O.S.No.2483/2014
in the negative.
/ 69 / O.S.No.2483/2014
c/w. 1889/2014
59. Issue No.3 in O.S. No. 1889/2014 : -
Plaintiff claims that the defendants have tried to
dispossess him from the suit schedule property.
Plaintiff proved his possession over suit schedule
property as on the date of suit and he further proved
the obstruction made by the defendants. Hence,
plaintiff in O.S.No.1889/2014 is entitled to the relief of
permanent injunction against defendants.
Accordingly, I answer Issue No.3 in O. S. No.
1889/2014 in the affirmative.
60. Issue No.8 in O.S.No.2483/2014 and
Issue No.4 in O.S.No.1889/201 :- In view of the
above discussions, I proceed to pass the following:
ORDER
O.S.No.2483/2014 filed by the plaintiff is hereby dismissed with costs.
/ 70 / O.S.No.2483/2014
c/w. 1889/2014
O.S.No.1889/2014 is hereby decreed with costs.
The defendants in O.S.No.1889/2014, their agents, representatives or any persons claiming under them are hereby restrained from interfering, meddling with the plaintiff's peaceful possession and enjoyment over the suit schedule property.
Keep the original Common Judgment in O.S.No.2483/2014 and copy of the Common Judgment in O.S.No.1889/2014.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 28th day of January, 2022.) (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 71 / O.S.No.2483/2014
c/w. 1889/2014
ANNEXURE
1. List of witnesses examined for plaintiff in
O.S.2483/2014 :
PW.1 : Smt. C. Saraswathamma
2. List of documents exhibited for plaintiff in O.S.2483/2014 :
Ex.P.1 GPA dated 7.1.14 executed by Prashanth Reddy in favour of Saraswathamma Ex.P.2 C/c. Sale Deed dated 10.7.2013. Ex.P.3 C/c Sale Deed dated 8.8.2013 Ex.P.4 B property register extract dated 16.7.2013 Ex.P.5 B property register extract dated 19.8.2013.
Ex.P.6 Receipt dated 19.8.2013 issued by BBMP.
Ex.P7 C/c electricity connection report Ex.P8 C/c Test Certificate dated 22.1.2014 issued by BESCOM Ex.P9 Receipt dated 23.1.2014 issued by Landis + Gyr Ltd., Bangalore.
Ex.P10 C/c 13 Tax paid Receipts. Ex.P.11 C/c 20 Electricity Bills and 19 receipts.
Ex.P.12 C/c. 3 Water Bills and one receipt.
/ 72 / O.S.No.2483/2014
c/w. 1889/2014
Ex.P.13 C/c Receipt dated 10.3.2013 issued by BWSSB Ex.P.14 C/c 10 receipts issued by Ganapa Indane Distributors Bangalore. Ex.P.15 C/c 2 Acknowledgements. Ex.P.16 C/c Sale Deed dated 18.6.1998 in respect of Khata No.29 Ex.P.17 C/c Sale Deed dated 18.6.1998 in respect of Khata No.30.
Ex.P.18 C/c Rectification deed dated 29.5.2015 Ex.P.19 C/c EC Form No.15 dated 6.8.2013 Ex.P.20 C/c. EC Form No.15 dated 22.8.2013 Ex.P.21 C/c 6 Tax Paid Receipts. Ex.P.22 C/c application submitted to BWSSB Ex.P.23 C/c provisional demand note dtd 28.2.2015 issued by BWSSB along with sketch.
Ex.P.24 C/c FIR CC No.12704/2015. Ex.P.25 C/c complaint in C.C.No.12704/15 Ex.P.26 C/c photos 14 sheets. Ex.P.27 C/c GPA dated 5.2.1999 executed by Munithirumalappa in favour of Smt.Susheela.
Ex.P.28 Affidavit dated 5.2.1999 executed by Munithirumalappa.
Ex.P.29 Gas invoices dated 16.10.2021 issued by GAIL Gas ltd., Bangalore. Ex.P.30 Gas invoices dated 16.11.2021 issued by GAIL Gas ltd., Bangalore. Ex.P.31 Payment Receipt dated 15.11.2021 Ex.P.32 Receipt dated 14.12.2021 issued by Bangalore One.
/ 73 / O.S.No.2483/2014
c/w. 1889/2014
Ex.P.33 Water Bill for the month November 2021 issued by BWSSB Ex.P.34 Receipt dated 14.12.2021 issued by Bangalore One.
Ex.P.35 Electricity Bill for the month of November 2021.
Ex.P.36 Receipt dated 14.12.2021 issued by Bangalore One.
Ex.P.37 C/c Sale Deed dated 5.11.2001 in respect of Site No.42.
Ex.P.38 C/c. Judgment and decree passed in O.S.No.5449/2018.
Ex.P.39 Letter dated 24.7.2019. Ex.P.40 13 photos Ex.P.41 CD in respect of Ex.P.40. Ex.P.42 C/c of gift deed dated 29.8.2013.
3. List of witnesses examined for defendants in O.S.2483/2014 : :
D.W.1 : Sandeep S.
4. List of documents exhibited for defendants in O.S.2483/2014 : :
Ex.D1 Gift deed dt 28.8.2013 in respect of site No.49, Khatha No.28 situated at Haralakunte village Ex.D2 C/c sale deed dt 6.5.1957 Ex.D3 C/c M.R.No.3/1971-72 Ex.D4 C/c B property register extract in respect of property No.48/2/28/49 of Haralakunte village issued by BBMP / 74 / O.S.No.2483/2014 c/w. 1889/2014 Ex.D5 C/c receipt dt 28.9.2013 Ex.D6 C/c letter dt 16.7.2014 issued by Asst.
Treasury Officer, Stamps, Vidhana Soudha Bangalore Ex.D7 C/c Tax paid receipt dt 2.9.2013 Ex.D8 C/c Tax paid receipt dt 2.9.2013 Ex.D9 C/c Tax paid receipt dt 5.5.2015 Ex.D10 C/c Tax paid receipt dt 5.5.2015 Ex.D11 C/c Tax paid receipt 17.5.2016 Ex.D12 Tax paid receipt 7.9.2017 Ex.D13 Tax paid receipt dt 3.5.2019 Ex.D14 Tax paid receipt dt 10.4.2021 Ex.D15 Tax paid receipt dt 10.4.2021 Ex.D16 Tax paid receipt dt 10.4.2021 Ex.D17 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 1974-75 to 1978-79 Ex.D18 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 1990-91 to 1994-95 Ex.D19 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 1990-91 to 1996-97 Ex.D20 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 1997-98 to 2000-01 Ex.D21 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2001-02 Ex.D22 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2003-04 Ex.D23 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2004-05 Ex.D24 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2005-06 / 75 / O.S.No.2483/2014 c/w. 1889/2014 Ex.D25 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2006-07 Ex.D26 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2007-08 Ex.D27 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2008-09 Ex.D28 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2009-10 Ex.D29 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2010-11 Ex.D30 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2012-13 Ex.D31 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2013-14 Ex.D32 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2014-15 Ex.D33 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2015-16 Ex.D34 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2016-17 Ex.D35 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2017-18 Ex.D36 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2018-19 Ex.D37 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2019-2020 Ex.D38 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2020-21 Ex.D39 C/c RTC in respect of land bearing No.48/2 of Haralakunte village from 2021-22 Ex.D40 C/c EC form No.16 dt 9.11.2020 in respect of site No.49 carved in Sy.No.48/2 of Harakunte village Ex.D41 C/c EC form No.15 dt 16.3.2021 in respect / 76 / O.S.No.2483/2014 c/w. 1889/2014 of site No.49 carved in Sy.No.49 Ex.D42 C/c sanction letter dt 29.10.2013 issues by AEE, Bescom Ex.D43 C/c test certificate dt 30.10.2013 issues bescom Ex.D44 C/c electricity bill for the month July-2017 Ex.D45 13 electricity bills Ex.D46 Receipt dt 27.10.2021 issued by Bangalore-one Ex.D47 Receipt issued by Bangalore one Ex.D48 Receipt dt 20.12.2021 issued by BESCOM Ex.D49 C/c acknowledgement dt 15.2.2014 issued by PSI, HSR layout PS, Bangalore Ex.D50 C/c spot mahazar dt 12.2.2014 in HSR layout PS Cr.No.98/2014 Ex.D51 C/c photos, 3 sheets Ex.D52 C/c 2 receipts dt 28.1.2014 issued by Kodac photo studio Bangalore
1. List of witnesses examined for plaintiff in O.S.1889/2014 :
PW.1 Sandeep S
2. List of documents exhibited for plaintiff in
O.S.1889/2014 :
Ex.P.1 C/c of Sale Deed dated
6.5.1957
Ex.P.2 C/c. Of M.R.
Ex.P.3-7 Five RTCs
Ex.P.8 Gift deed dated 28.8.2013
/ 77 / O.S.No.2483/2014
c/w. 1889/2014
Ex.P.9 C/c of Khata Extract.
Ex.P.10-15 Tax paid receipts.
Ex.P16 Sanction Letter issued by
BESCOM
Ex.P17 Test certificate.
Ex.P18 8 Electricity Bills.
Ex.P19 16 Receipts.
Ex.P.20 Acknowledgment.
Ex.P.21 Copy of Mahazar.
Ex.P.22 to 30 9 Photos
Ex.P.31 CD (Subject to display in the
Court) of Ex.P22 to 30
Ex.P.32 Receipt dated 28/1/2014
Ex.P33 & 34 2 electricity bills Ex.P35 Receipt dated 10/12/2017 Ex.P36 Letter issued by Asst Treasury Officer, stamps Vidhan Soudha Bangalore Ex.P37 Tax paid receipt dated 17/5/2016 Ex.P38 Tax paid receipt dated 7/9/2017
3. List of witnesses examined for defendants in O.S.1889/2014 : :
D.W.1 : Smt. C.Saraswathamma.
4. List of documents exhibited for defendants in O.S.1889/2014 : :
/ 78 / O.S.No.2483/2014
c/w. 1889/2014
Ex.D1 C/c GPA dt 7.1.2014 executed by
Prashanth Reddy in favour of
Saraswathamma
Ex.D2 C/c sale deed dt 10.7.2013
Ex.D3 C/c sale deed dt 8.8.2013
Ex.D4 C/c B property register extract dt
16.7.13
Ex.D5 C/c B property register extract dt
19.8.13
Ex.D6 Receipt dt 19.8.2013 issued by BBMP
Ex.D7 C/c electricity connection report
Ex.D8 C/c Test certificate dt 27.1.2014 issued
by BESCOM
Ex.D9 Receipt dt 23.1.2014 issued by Landis +
Gyr, Ltd Bangalore
Ex.D10 12 Tax paid receipt Ex.D11 20 electricity bills and 19 receipts Ex.D12 4 Water bills Ex.D13 25 receipts for having paid the water charges Ex.D14 Receipt dt 10.3.2013 issued by BWSSB Ex.D15 10 receipts issued by Ganapa Indane distributors Bangalore Ex.D16 2 acknowledgements Ex.D17 C/c sale deed dt 18.6.1998 in respect of Khatha No.29 Ex.D18 C/c sale deed dt 18.6.1998 in respect of Khatha No.30 Ex.D19 C/c Rectification deed dt 29.5.2015 / 79 / O.S.No.2483/2014 c/w. 1889/2014 Ex.D20 C/c EC form No.15 dt 6.8.2013 Ex.D21 C/c EC form No.15 dt 22.8.2013 Ex.D22 6 Tax paid receipts Ex.D23 Copy of the application submitted to BWSSB Ex.D24 Provisional demand note dt 28.2.2015 issued by BWSSB along with sketch Ex.D25 C/c FIR, compliant, charge sheet and wound certificate along with photos in CC.No.12704/2015 (all together marked) Ex.D26 Copy of the complaint in CC.No.12704/2015 Ex.D27 27 photos Ex.D28 CD of Ex.P27 photos Ex.D29 General Power of Attorney executed by Munitirumallappa dt 5.2.1999 (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** / 80 / O.S.No.2483/2014 c/w. 1889/2014 28/01/2022 Judgment pronounced in the open Court (Vide separate Judgment) ORDER O.S.No.2483/2014 filed by the plaintiff is hereby dismissed with costs. O.S.No.1889/2014 is hereby decreed with costs.
The defendants in O.S.No.1889/2014, their agents, representatives or any persons claiming under them are hereby restrained from interfering, meddling with the plaintiff's peaceful possession and enjoyment over the suit schedule property.
Keep the original Common Judgment in O.S.No.2483/2014 and copy of the Common Judgment in O.S.No.1889/2014. Draw decree accordingly.
(KHADARSAB) XXXIX A.C.C & S. Judge, Bangalore City.