Bangalore District Court
Mr. S. Chand Basha vs Sri H.M. Ramesh on 4 March, 2020
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 4th day of March, 2020.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.689/2014
PLAINTIFFS : 1. Mr. S. Chand Basha
Aged about 33 years
S/o Mr. S. Allahbakash
2. Mr. S. Allah Bakash,
Aged about 55 years
S/o Mr. Abdul Sattar Sab
3. Mr. Tajuddin,
Aged about 28 years
S/o S. Allah Bakash
All are presently
R/at No.22, Papanna Layout,
Subbayyanapalya,
M.S. Nagar Post,
Bengaluru-560 033
(By Sri Papi Reddy G., Advocate)
2 O.S.No.689/2014
VS.
DEFENDANTS : 1. Sri H.M. Ramesh,
Aged about 34 years,
S/o Sri Mune Gowda,
2. Smt. Ramya Ramesh,
Aged about 28 years
W/o Sri H.M. Ramesh,
Both are residing at No.9
"Maruthi Arcade"
9th Main, 11th Cross,
Hennur Maruthi Layout,
HBR-IV Block,
Kalyananagar Post,
Bengaluru-560 043
(By Sri TSR, Advocate)
Date of Institution of the suit : 24.01.2014
Nature of the suit : Suit for Declaration and
Possession
Date of commencement of : 24.08.2015
recording of the evidence
Date on which the Judgment was : 04.03.2020
pronounced
Total Duration Years Months Days
06 01 10
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.689/2014
JUDGMENT
This suit is filed by the plaintiffs against the defendants for the relief of declaration to declare the plaintiffs are the absolute owners of the suit schedule properties and to declare the alleged sale deed dated 15.04.2013 registered as document No KCH-1- 00264/2013-14, in the office of Sub-Registrar at Kacharakanahalli, Gandhinagar, Bengaluru executed by Smt. Asha in respect of the suit schedule properties in favour of the defendants is null and void and for mandatory injunction to direct the defendants for demolishing/removing the unauthorised construction of raising pillars in the suit schedule properties and to direct the defendants to deliver vacant possession of the suit schedule properties to the plaintiffs and such other reliefs along with costs
2. The plaintiffs' case is that, plaintiff No.1 is absolute owner of the suit schedule item No.1 property and plaintiff No.2 and 3 are absolute owners of suit schedule item No.2 property and stated to have been purchased the item No.1 and 2 by the 4 O.S.No.689/2014 plaintiff No.1, and plaintiffs No.2 and 3 through a separate registered sale deed dated 19.02.2011 from its previous owners Smt. Lakshmamma, Kempamma and Munegowda and their children. Plaintiffs No.1 and 3 are sons of plaintiff No.2 and they have absolute right, title, interest over the suit schedule properties. The suit schedule properties are part and parcel of Sy.No.8/3 of Hennur Village and schedule properties had been formed in Sy.No.8/3 of Hennur Village and the same was owned and possessed by one Mr. Muninanjappa. Said Muninanjappa had two daughters by name Narayanamma and Akkayamma through his first wife Doddathayamma. He had also another daughter by name Prema through his second wife Jayamma. He died in the year 1974 and his wife Doddathayamma died subsequently in the year 1984. One of his daughters by name Akkayamma @ Ammaiyamma had instituted a suit in O.S.No.6093/1994 seeking partition and separate possession of her legitimate share in the land bearing Sy.No.8/3 of Hennur Village among other properties. The suit was partly decreed granting 1/6th share in the suit properties including the land bearing Sy.No.8/3 of Hennur Village 5 O.S.No.689/2014 and rejected the claim in respect of suit item No.11. Aggrieved by the said judgment and decree in so far as disallowing 1/3rd share in the suit schedule properties, said Akkayamma had preferred an appeal in R.F.A.No.43/2005 before the Hon'ble High Court of Karnataka. In the said appeal, judgment and decree of the trial court was set side and suit was decreed declaring that the plaintiff Akkayamma, the defendant No.2 Prema are entitled for 1/3rd share each and defendants No.3 to 5, i.e., Lakshmamma, Munegowda and Kempamma (children of late Narayanamma) together entitled for 1/3rd share in all the suit schedule properties by its judgment and decree dated 04.10.2007. Subsequent to the judgment and decree in R.F.A.No.43/2005, the sharers had orally divided the properties by metes and bounds and started enjoying the same in terms of the quantum of shares declared under the judgment and decree passed in the R.F.A.No.43/2005 dated 04.10.2007.
As per the oral division by metes and bounds, the schedule properties fallen to the share of Lakshmamma, Kempamma and 6 O.S.No.689/2014 Munegowda, three children of Narayanamma and grandchildren of late Muninanjappa and Doddathayamma, they have lawfully transferred the schedule properties in favour of the plaintiffs under the registered sale deeds dated 19.02.2011 and delivered possession of the suit schedule properties to the plaintiffs on completion of the sale transaction and receiving the sale consideration amount. The khatha in respect of the schedule properties was standing in the name of Lakshmamma, vendor No.1 of the plaintiffs, the plaintiffs were in lawful possession of the suit schedule properties as absolute owners. Plaintiffs have remitted taxes in respect of the schedule properties to the BBMP. The defendants have no semblance of legal right over the schedule properties. On 17.04.2013 they made a wrongful claim over the schedule properties and trespassed into the schedule properties and wrongfully occupied the same on the strength of the alleged sale deed stated to have been executed in their favour by one Smt. Asha. The sites baring No.6 and 7 adjoining properties belongs to the plaintiffs, the defendants have made wrongful invasion over the schedule properties by adopting high 7 O.S.No.689/2014 handed methods. Plaintiff No.2 had lodged complaint to Banaswadi police and Assistant Commissioner of Police, Banaswadi against the defendants for having made wrongful invasion over the schedule properties. But the police did not take required action in the matter.
The defendants claims to have taken a sale deed in respect of the schedule properties on 15.04.2013 from Asha K. The said Asha had earlier filed O.S.No.4105/2012 against Jayamma, Prema, Lakshmamma, Munegowda and Kempamma claiming a decree for permanent injunction in respect of the schedule properties . The said suit filed by Asha was opposed by Lakshmamma, Munegowda and Kempamma, the vendors of the plaintiffs. The said Asha got her suit dismissed by filing a memo on 16.04.2013, the defendants claim to have taken the sale deed from the said Asha in respect of the schedule properties on 15.04.2013, one day earlier to dismissal of the suit in O.S.No.4105/2012.
8 O.S.No.689/2014
The said Asha had no legal right much less possession over the schedule properties. The defendants have also not acquired any legal right or possession from Asha under the alleged sale deed dated 15.04.2013. During the last week of December 2013 when the Court had winter vacation, defendants No.1 and 2 have started unauthorised construction in the schedule properties. They have raised concrete pillars and bent upon to proceed with the construction unauthorisedly in the suit schedule properties. The defendants are in the habit of grabbing the properties by creating documents and putting up unauthorised construction by adopting high handed methods. They have no respect for law or for morality. They have wrongly occupied the schedule properties and started putting up construction over the same unauthorisedly with a malafide motivation of making wrongful gain. The plaintiffs are victims in the hands of the defendants, who are land grabbers. They have caused legal injury to the plaintiffs in respect of the schedule properties. The plaintiffs are unable to physically prevent the defendants from proceeding with the wrongful actions. In these circumstances, the plaintiffs having no 9 O.S.No.689/2014 other way is approaching this Court for declaration of ownership, mandatory injunction and also possession. With these grounds, plaintiffs seek to decree the suit.
3. After service of summons, the defendants have appeared before Court by engaging the services of advocate and have filed detailed written statement denying and disputing the plaint averments. The specific contention of the defendants is that, suit of the plaintiffs is barred under Order 2 Rule 4 of CPC, since item No.1 and 2 are different properties and without leave of the Court, the suit is instituted in respect of different properties. The plaintiffs are not in possession and their vendors were also not in possession of the suit schedule properties. Sy.No.8/3 was totally measuring 3 acres 1 gunta which is acquired by Muninanjappa under a registered sale deed dated 30.07.1937 and the suit for partition in O.S.No.6093/1994 was filed only in respect of 1 acre 31 guntas. The legal heirs of said Muninanjappa, i.e., Jayamma and Prema have executed GPA in favour of H.M. Ramaiah and on the basis of GPA, said Ramaiah 10 O.S.No.689/2014 has sold the schedule properties in favour of Asha, the vendor of the defendants, on 04.12.2003. The said Ramaiah after taking GPA from Jayamma and Prema, has formed a layout by forming 23 sites and same have been sold by the said Ramaiah on the basis of GPA to various persons including the vendor of the defendants, i.e., Smt. K. Asha. In respect of the said sale deeds, Narayanamma and others have filed 16 suits and one of them is O.S.No.5842/2008 and all these suits were decreed and against which R.F.A. was preferred to the Hon'ble High Court. In the High Court, Hon'ble High Court has given clear finding that purchasers interest has to be protected, since no final decree is drawn in the partition suit.
Though the Hon'ble High Court has decreed the R.F.A. by allotting 1/3rd share, but no final decree drawn till the date. Even other wise the interest of the defendants has to be protected as per the decision of the Hon'ble High Court. The defendants are in possession and enjoyment of the property legally and without questioning the sale deed of the vendor of the defendants 11 O.S.No.689/2014 executed by H.M. Ramaiah in favour of Asha, present suit is not maintainable and they further contend that defendants have not trespassed into suit schedule property and they are in lawful possession by virtue of the sale deed executed by their vendor Smt. Asha. Possession is also delivered by Smt. Asha under the sale deed. With these grounds and also other contentions seeks to dismiss the suit.
4. On the basis of the above pleadings, my predecessor has framed the following issues on 08.06.2015:-
1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule properties?
2. Whether the plaintiffs further prove that registered Sale Deed dated.15.04.2013 executed by Smt.Asha.K in respect of the suit schedule properties in favour of the defendants is null and void?
3. Whether the plaintiffs further prove that the defendants had trespassed and wrongfully occupied the suit schedule properties on 17.4.2013?
4. Whether the plaintiffs further prove that the defendants have put up unauthorised construction over the suit schedule properties?12 O.S.No.689/2014
5. What is the effect of Judgment & Decree passed in R.F.A.No.1551/2012 and connected appeals dated.14.8.2013 on this suit?
6. Whether the suit of the plaintiff is bad for non-
joinder of necessary parties?
7. Whether the suit of the plaintiff is maintainable in the present form?
8. Whether the plaintiffs are entitled to the relief of declaration as sought against the defendants?
9. Whether the plaintiffs are entitled to the relief of mandatory injunction against the defendants?
10. Whether the defendants are liable to deliver vacant possession of the suit schedule property to the plaintiffs?
11. What order or decree?
5. To substantiate the contention, the plaintiff No.2 is examined himself as P.W.1 and Ex.P.1 to P.57 are marked. Ex.P.1 is certified copy of sale deed dated 15.04.2013 executed by Asha in favour of the defendants, Ex.P.2 is certified copy of sale deed dated 19.02.2011 in respect of site No.6, i.e., item No.1, Ex.P.3 is certified copy of sale deed dated 19.02.2011 in respect of site No.7, i.e., item No.2, Ex.P.4 is certified copy of judgment in R.F.A.No.43/2005, Ex.P.5 is certified copy of decree 13 O.S.No.689/2014 in R.F.A.No.43/2005, Ex.P.6 is certified copy of order sheet in O.S.No.4105/2012, Ex.P.7 is certified copy of memo filed in O.S.No.4105/2012 dated 16.04.2013, Ex.P.8 is certified copy of plaint in O.S.No.4105/2012, Ex.P.9 is certified copy of written statement of defendants No.4 and 5 in O.S.No.4105/2012, Ex.P.10 is encumbrance certificate, Ex.P.11 to P.18 are photographs, Ex.P.19 is CD, Ex.P.20 is certified copy of the judgment passed in MFA No.4686/2014, Ex.P.21 original sale deed dated 19.02.2011 in respect of site No.6, Ex.P.22 is original sale deed dated 19.02.2011 in respect of site No.7, Ex.P.23 is original deed of confirmation dated 10.07.2012, Ex.P.24 is deed of confirmation dated 10.07.2012, Ex.P.25 to P.27 are khatha extracts, Ex.P.28 to P.51 are tax paid receipts, Ex.P.52 is FIR, Ex.P.53 is complaint, Ex.P.54 is FIR, Ex.P.55 is charge sheet, Ex.P.56 is charge sheet, Ex.P.57 is certified copy of order sheet in Crime No.3/2015. Apart from P.W.1, P.W.2 Mr.Lokesh is also examined.
14 O.S.No.689/2014
From the defendants' side defendant No.1 is examined as D.W.1 ad Ex.D.1 to D.84 are marked. Ex.D.1 is certified copy of deed of confirmation dated 12.09.2012, Ex.D.2 is original sale deed dated 15.04.2013, Ex.D.3 is original sale deed dated 04.12.2003, Ex.D.4 is khatha certificate, Ex.D.5 is khatha register extract, Ex.D.6 is khatha register extract, Ex.D.7 is khatha certificate, Ex.D.8 is khatha register extract, Ex.D.9 is khatha certificate, Ex.D.10 is khatha register extract, Ex.D.11 to D.20 are tax paid receipts, Ex.D.21 is building licence dated 23.12.2006, Ex.D.22 is blue print, Ex.D.23 is building licence dated 14.02.2014, Ex.D.24 is blue print, Ex.D.25 is details of plan, Ex.D.26 is receipt, Ex.D.27 is BWSSB Card, Ex.D.28 is BWSSB receipt, Ex.D.29 is BWSSB receipt, Ex.D.30 is work order, Ex.D.31 is BWSSB application, Ex.D.32 is BWESCOM work order, Ex.D.33 is BESCOM bill, Ex.D.34 to D.39 are tax paid receipts, Ex.D.40 and D.41 are encumbrance certificates, Ex.D.42 is receipt for having paid development charges, Ex.D.43 is deed of confirmation dated 12.09.2012, Ex.D.44 is certified copy of sale deed dated 30.07.1937, Ex.D.45 is typed copy of Ex.D.44, Ex.D.46 is certified 15 O.S.No.689/2014 copy of plaint in O.S.No.6093/1994, Ex.D.47 is certified copy of written statement in O.S.No.6093/1994, Ex.D.48 is certified copy of judgment in O.S.No.6093/1994, Ex.D.49 is certified copy of judgment in R.F.A.No.1551/2012, Ex.D.50 is certified copy of petition in FDP No.124/2017, Ex.D.51 is certified copy of objections in FDP No.124/2017, Ex.D.52 is certified copy of order sheet in FDP No.124/2017, Ex.D.53 is certified copy of judgment and decree in O.S.No.5753/2008, Ex.D.54 is certified copy of judgment and decree in O.S.No.5782/2008, Ex.D.55 is certified copy of judgment and decree in O.S.No.5186/2008, Ex.D.56 is certified copy of judgment and decree in O.S.No.5818/2008, Ex.D.57 is certified copy of judgment and decree in O.S.No.5842/2008, Ex.D.58 is certified copy of judgment and decree in O.S.No.5843/2008, Ex.D.59 is certified copy of judgment and decree in O.S.No.5845/2008, Ex.D.60 is certified copy of judgment and decree in O.S.No.5846/2008, Ex.D.61 is certified copy of judgment and decree in O.S.No.5976/2008, Ex.D.62 is certified copy of judgment and decree in O.S.No.5977/2008, Ex.D.63 is certified copy of judgment and 16 O.S.No.689/2014 decree in O.S.No.5978/2008, Ex.D.64 is certified copy of judgment and decree in O.S.No.6687/2008, Ex.D.65 is certified copy of judgment and decree in O.S.No.6686/2008, Ex.D.66 is certified copy of judgment and decree in O.S.No.8209/2010, Ex.D.67 and D.68 are photographs, Ex.D.69 is CD, Ex.D.70 to D.83 are photographs, Ex.D.84 is CD.
6. Learned counsel for plaintiffs has vehemently contended that, vendor of the plaintiffs have got suit property in pursuance of the judgment passed by the Hon'ble High Court in the R.F.A. and the vendor of the defendants Smt. Asha was not in possession of the suit property, and the suit property was sold during pendency of the suit in O.S.No.4105/2012 filed for injunction, and before withdrawal of the suit, said Asha has alienated the suit property, in view of this rule of lis pendence will applicable and no valid title is passed on to the defendants and the defendants have taken forcible possession of the suit property on the basis of the sale deed, when there is no valid title, the defendants have no right, title or interest over the suit 17 O.S.No.689/2014 property and they have to hand over possession and no title has been passed on to the defendants and he seeks to decree the suit.
7. On the other hand, learned counsel for defendants categorically contended that present suit itself is not maintainable under Order 2 Rule 4 of CPC since item Nos.1 and 2 are different properties and single suit has been brought into against the defendants for different properties without leave of the Court and the present suit is not maintainable. He further contended that though Hon'ble High Court has recognised the shares, no final decree has been carved out, no FDP has been filed, there is dispute with regard to identity of the property. Hence present suit is not maintainable and he further contends that originally Sy.No.8/3 is measuring 3 acres 1 gunta and partition suit is filed only in respect of 1 acre 31 guntas. Even the Hon'ble High Court has allotted 1/3rd share to Prema. Hence the defendants have acquired valid title through Prema, since she has executed GPA in favour of H.M. Ramaiah and he only has sold the property to the 18 O.S.No.689/2014 vendor of the defendants, i.e., Smt. Asha and Asha has sold the property to these defendants. Further he contended that, as per the observation made by the Hon'ble High Court in R.F.A.No.1551/2012 that in the suits filed by the purchasers of the sites by Prema and Jayamma through GPA holder, interest of the defendants is certainly be protected. Apart from that, he has categorically contended that, without challenging the sale deed executed by H.M. Ramaiah in favour of Asha, the present suit only challenging the sale deed executed by Smt. Asha in favour of the defendants is not maintainable, that too without making Asha as defendant in the present suit. With other contentions he seeks to dismiss the suit.
8. While countering the arguments canvassed by the defendant counsel, learned counsel for plaintiff submitted that though there are two sale deeds, the vendor is common and there is same cause of action, hence the argument of the defendants counsel that suit of the plaintiff is not maintainable under Order 2 Rule 4 of CPC, cannot be sustained and he has 19 O.S.No.689/2014 also contended that identity is not in dispute and rule of lis pendence is aptly applicable to the facts on hand since the sale deed is executed by Asha during pendency of the suit without obtaining permission from the Court.
9. During the course of arguments, learned counsel for plaintiff has relied upon the following decisions:
1. 44 Cal 186 (PC)
2. AIR 1978 Allahabad 318
3. (2007) 2 Supreme Court Cases 551.
10. The defendants counsel has relied upon the following authorities.
1. AIR 1977 Karnataka 99,
2. AIR 1998 Karnataka 67
3. AIR 1997 Calcutta 202
4. AIR 2000 Madras 465
5. (2007) 2 Supreme Court Cases 404 20 O.S.No.689/2014
11. Having heard the arguments and perused the records, now my answers to the above issues are as under:-
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 affirmative Issue No.7: In the negative Issue No.8: In the negative Issue No.9: In the negative Issue No.10: In the negative Issue No.11: As per final order, for the following:-
REASONS
12. Issue No.1:- Plaintiffs have filed the present suit for the relief of declaration to declare that they are absolute owners of the suit schedule properties and to declare the alleged sale deed dated 15.04.2013 executed by Asha in favour of the defendants is null and void and for mandatory injunction to 21 O.S.No.689/2014 demolish the construction in the suit schedule property and for possession and other reliefs.
13. Plaintiffs claims the above said reliefs on the strength of Ex.P.21 and P.22 (certified copies of the same are produced at Ex.P.2 and P.3), on the ground that site No.6 is sold by Lakshmamma and her children, Kempamma and her children and Mune Gowda and his children in favour of plaintiff No.1 and site No.7 i.e., item No.2 is sold by the very same persons in favour of plaintiffs No.2 and 3 as per Ex.P.22, certified copy of the same is produced at Ex.P.3.
14. The definite contention urged in the suit is that, vendors of the plaintiffs have acquired Sy.No.8/3 in pursuance of the judgment and decree passed in R.F.A.No.43/2005 and after the said judgment and decree, there was oral partition by metes and bounds between the sharers. There is no dispute that originally Sy.No.8/3 was purchased by Muninanjappa under a registered sale deed dated 30.07.1937. He was having two wives, i.e., Doddathayamma and Jayamma. From first wife 22 O.S.No.689/2014 Doddathayamma he has daughters by name Narayanamma and Akkayamma @ Ammayamma and from second wife he has daughter by name Prema. Said Akkayamma filed O.S.No.6093/1994 seeking for partition and separate possession of her legitimate share in the land bearing Sy.No.8/3. In the said suit being aggrieved by the judgment and decree passed by the trial court, she preferred appeal to the Hon'ble High Court as per R.F.A.No.43/2005. In the said R.F.A. Hon'ble High Court has granted 1/3rd share to Prema, 1/3rd share to Akkayamma and 1/3rd share to Lakshmamma, Munegowda and Kempamma. In view of the said decision, Prema is entitled for 1/3rd share in 1 acre 31 guntas in Sy.No.8/3, Akkayamma is entitled for 1/3rd share in Sy.No.8/3 measuring 1 acre 31 guntas and Lakshmamma, Munegowda and Kempamma are entitled for 1/3rd share in Sy.No.8/3 measuring 1 acre 31 guntas. Though FDP was filed as per Final Decree Proceedings in FDP No.124/2007 by Akkayamma on the basis of R.F.A., the same was dismissed by the Court since Akkayamma was died on 02.11.2007 whereas final decree proceedings petition was filed on 03.11.2007 by 23 O.S.No.689/2014 holding that petition is filed by dead person, the final decree petition was dismissed. No records are forthcoming in pursuance of the R.F.A. judgment, final decree proceedings was again filed and shares were carved out to the sharers and possession was delivered to the sharers in accordance with law.
15. It is the definite contention of the plaintiffs that, after the R.F.A. judgment, there was oral partition between the sharers and there was division of the property by metes and bounds, but there is no document in this aspect. Even if there was an oral partition, khatha should have been mutated in the respective names of the sharers. But in the absence of cogent documentary as well as oral evidence, we cannot come to a conclusion that there was a oral partition between the sharers. That apart, Sy.No.8/3 was totally measuring 3 acres 1 gunta. But the suit is filed by Akkayamma for partition in O.S.No.6093/1994 only for 1 are 31 guntas. There is no any explanation is forthcoming why remaining extent is left out.
24 O.S.No.689/2014
16. On the other hand, the defendants who have taken specific stand that second wife Smt. Jayamma and her daughter Prema have executed GPA in favour of H.M. Ramaiah to their share allotted in Sy.No.8/3 and who by forming 23 sites has sold to various persons and this has been evidenced from Ex.D.53 to D.66 because all the said purchasers have instituted suits for permanent injunction against Jayamma and others and in all the suits permanent injunction was granted, which shows that property was parted with H.M. Ramaiah by Jayamma and her daughter Prema much earlier to the sale deed of the plaintiffs. Even P.W.1 is aware of the said transaction because he has signed as witness to Ex.D.1, which is deed of confirmation executed by Prema, Munegowda, Kempamma, Charanraj, Ashvini, Munegowda, Lokesh and Padmavathi in favour of Nanjegowda and Shanthmma wherein it is clearly mentioned that:
"Whereas schedule property carved out of the larger extent of property No.8/3 originally belonged to Smt. Jayamma, W/o Late Muninanjappa, who is mother of Sl.No.1 in parties of the First Part and the same was 25 O.S.No.689/2014 their joint family property. The said Smt. Jayamma and Smt. Prema executed sale deed through their general power of attorney holder Sri H.M. Ramaiah, S/o Sri Muniveerappa, in favour of Smt. Bhagyamma W/o Sri Manjunath, registered ............."
The said confirmation deed is executed in respect of site No.13, V.P. Khatha No.8/3 formed out of Sy.No.8/3 and during cross-examination signature of plaintiff No.2 Allah Bakash is shown to him and he admitted his signature and the same is marked as Ex.D.1(a). When he admits the signature, he must be knowing the contents of the document.
17. But the argument canvassed by the learned counsel for plaintiffs that plaintiff No.2 was only a witness and there is no necessity to him to know the contents of the same. But the same cannot be accepted for the simple reason, because he is a literate person and who has affixed his signature to Ex.D.1. When he has signed the document before Sub-Registrar, he must be knowing why all the persons are executing the document in 26 O.S.No.689/2014 favour of Nanjegowda and Shanthamma. By that time he must be knowing that there was a GPA executed by Prema and her mother in favour of H.M. Ramaiah.
18. In this case, plaintiffs claims their title the basis of the sale deeds dated 19.02.211 which are produced at Ex.P.21 and P.22. But surprisingly though they have sought for cancellation of the sale deed, they have not made Asha, the vendor of the defendants as one of the defendant, because she is necessary and proper party for adjudication of the dispute between the parties. Without making her as party seeking for cancellation of the sale deed executed by said Asha is not maintainable. When Prema and Jayamma have parted with possession of the property in the year 1994 itself by executing GPA in favour of H.M. Ramaiah, without challenging the earlier transaction of the suit property, they cannot seek that they are owners of the suit properties. Admittedly, plaintiffs are not in possession of the suit schedule properties and they are seeking for possession also. Of course possession aspect will be 27 O.S.No.689/2014 discussed at the later stage. But admittedly when they are not in possession, without seeking earlier transaction is null and void and when the documents are clear before the Court that there was no partition of properties by the order of the R.F.A. and when the properties are not divided by metes and bounds and when the same are not handed over in execution proceedings and when the documents clearly shows that possession is parted way back in 1994 itself by Jayamma and her daughter Prema to H.M. Ramaiah and when the Hon'ble High Court in R.F.A.No.1551/2012 with connected matters dated 14th August, 2013 has clearly held that:
"6. The trial court shall hence deal with any Final Decree Proceedings initiated without reference to such dismissal earlier. It is also made clear that the purchaser-respondent No.1 is said to have developed the property and claims to have put up construction and therefore, in dividing the properties to allot the shares of the respective parties, the court below shall keep in view the equities that would have to be considered insofar as development and construction made by the purchaser - respondent No.1, who claims to be a bonafide purchaser for value, of the property."28 O.S.No.689/2014
The defendants also standing in the same footing since no division of the property is made as per the judgment and decree passed by the Hon'ble High Court in R.F.A., the vendors of the plaintiffs have no right to execute the sale deed, in the absence of clear proof of oral partition and identity of the property, I am of the opinion that the plaintiffs have miserably failed to prove that they are absolute owners of the suit properties. Hence it is held in the 'negative'.
19. Issue No.2:- Though the plaintiffs have sought for declaration to declare the sale deed dated 15.04.2013 executed by Asha in favour of the defendant in respect of suit schedule properties is null and void, we have to see that said relief is sought by the plaintiffs without making Asha as defendant in the case. To adjudicate that the sale deed is null and void, Asha is most important, proper and necessary party in the case. Moreover, there is clear document as admitted by the plaintiffs also that Sy.No.8/3 was parted way pack in 1994 by Smt. Jayamma and Prema to H.M. Ramaiah by executing GPA and 29 O.S.No.689/2014 without asking for cancellation of sale deed dated 04.12.2003 executed by H.M. Ramaiah on the basis of the GPA executed by Jayamma and Prema, in favour of Asha, only for seeking cancellation or declaration of the sale deed dated 15.04.2013 as null and void, is not correct. If at all plaintiffs wants to seek for cancellation of the sale deed dated 15.04.2013, they definitely should have sought for cancellation of the sale deed dated 04.12.2003 also. In the absence of such a specific prayer, this Court is not in a position to hold present issue in affirmative. Hence it is held in the 'negative'.
20. Issue No.3:- The very contention of the plaintiffs is that, defendants have trespassed on the suit schedule property on 17.04.2013. But the documents produced by the defendants shows that possession of the suit property has been handed over to the defendants by their vendor, which is produced at Ex.D.2 and the vendor of the defendants was also in possession of the suit property which is reflected in Ex.D.3 the sale deed executed by Jayamma and Prema through their GPA holder to the vendor 30 O.S.No.689/2014 to the defendants, Smt. Asha, wherein also it is clear that possession is handed over to Asha. During cross-examination P.W.1 has stated that:
"I had made verification and confirmed that the suit schedule properties were standing in the name of vendors and they were in possession."
But in this regard he has not produced single document before Court to show that property as on the date of sale was standing in the name of the vendors of the plaintiffs and important is P.W.1 during his cross-examination has sated that:
"I know the boundaries of the suit schedule properties, but today I am unable to give the boundaries as I am not well. I do not know that during the year 2003 the khatha of the suit schedule properties was standing in the name of Smt. K. Asha."
P.W.1 was cross-examined on that day at length and he has answered several questions on 18.01.2017. But when the question is asked about boundaries, he has simply answered that he is not able to give the boundaries, because he was not well, 31 O.S.No.689/2014 that cannot be considered, because if at all he was in possession of the said properties, then definitely he should have answered the boundaries to the property. Because he was not in possession, he was not able to answer the said question and he has also stated that he do not know during the year 2003 khatha was in the name of Asha. If at all he was in possession of the said property, definitely he should have answered that khatha was not in the name of Asha. These answers also clarifies that the defendants have not occupied the suit schedule properties on 17.04.2013 illegally. Even the photographs produced at Ex.P.67, P.68 and P.70 to P.83 shows that defendants were in possession of the suit properties much earlier to the said date. Hence I am of the opinion that same is not occupied on 17.04.2013 as contended by the plaintiffs. Hence it is held in the 'negative'.
21. Issue No.4:- To hold the construction as unauthorised, defendants must not be the owners of the suit property and it must be without permission or licence from the concerned authorities. But the document produced by the 32 O.S.No.689/2014 defendants at Ex.D.23 which is building licence issued by the BBMP dated 14.02.2014 shows that construction is in accordance with law and Ex.D.24 to D.33 also discloses construction is made by obtaining necessary permission from all the concerned authorities. Hence issue No.4 is held in the 'negative'.
22. Issue No.5:- The judgment and decree passed by the Hon'ble High Court in R.F.A.No.1551/2012 connected with R.F.A.Nos.1552/2012, 1553/2012, 1555/2012, 1554/2012, 1556/2012, 1557/2012, and 1558/2012 dated 14th August 2013, these appeals have been filed by Smt. Lakshmamma D/o Muninanjappa against the judgment and decree passed in original suits, which are produced at Ex.D.53 to D.66.
23. Originally Sy.No.8/3 was measuring 3 acres 1 gunta purchased by Muninanjappa under the registered sale deed dated 30.07.1937 which is produced by the defendants as per Ex.D.44. The partition suit is filed by Akkayamma in O.S.No.6093/1994 only to the extent of 1 acre 31 guntas in Sy.No.8/3 with other properties. There is no any explanation is forthcoming about 33 O.S.No.689/2014 remaining extent. From the records it is very much clear that Smt. Jayamma and Prema have executed GPA in favour of H.M. Ramaiah, who has formed a layout by forming 23 sites and he has sold to various persons and the said persons have filed 16 suits which are produced at Ex.D.53 to D.66. In the partition suit, share was not allotted to Akkayamma in item No.11, against which she preferred R.F.A.No.43/2005 before Hon'ble High Court. In the said R.F.A. Hon'ble High Court has modified the order of the trial Court by allotting 1/3rd share to Prema, 1/3rd share to Akkayamma and 1/3rd share to Lakshmamma, Munegowda and Kempamma. The document before Court clearly reveals that FDP filed as per Ex.D.50 is dismissed by the Court since Akkayamma died on 02.11.2007 and whereas FDP was filed on 03.11.2007. Since petition was filed by deceased person, as per the order sheet which is produced at Ex.D.52, FDP was dismissed. In the R.F.A. order which is produced at Ex.P.49 there is clear cut recital that as per the order of the Hon'ble High Court, no final decree proceedings has been initiated after the dismissal of FDP No.124/2007. So it is very much clear that sites sold by H.M. 34 O.S.No.689/2014 Ramaiah on the strength of GPA executed by Jayamma and Prema and when the purchasers are in possession of the property their interest is to be protected.
24. In the particular case also 1/3rd share of Prema is not carved out in any Final Decree Proceedings. Even assuming that 1/3rd share of Prema is alienated by H.M. Ramaiah as GPA holder, the interest of the defendants who have purchased the property from Asha who originally purchased the property from H.M. Ramaiah has to be protected as bonafide purchasers. Because plaintiffs though claims there was oral partition and in the said oral partition the properties were divided, after the judgment and decree by the Hon'ble High Court in R.F.A.No.43/2005, they have failed to prove oral partition and also the right, interest and possession and identity of the property of their vendors. Hence the judgment and decree passed in R.F.A.No.1551/2012 and connected appeals dated 04.08.2013 has definitely positive effect on the defendants. Hence issue No.5 is held in the 'affirmative'.
35 O.S.No.689/2014
25. Issue No.6:- The suit is in respect of site No.6 and 7 carved out of Sy.No.8/3. There is no dispute that Prema the daughter of Muninanjappa and Jayamma is also entitled for 1/3rd share in the property. The contention of the plaintiffs is that after the R.F.A. judgment, there was a oral partition in the family and vendors of the plaintiffs have acquired suit schedule property in the said oral partition and have sold as per Ex.P.21 and P.22. At the same time, plaintiffs seeks for cancellation of the sale deed in favour of the defendants. But the vendor of the defendants Smt. Asha has purchased the suit properties from Jayamma and Prema through their GPA holder under the registered sale deed Ex.D.3 dated 04.12.2003. From Asha defendants have acquired the suit property. If at all plaintiffs want to challenge the alienation made by Asha, definitely they should have made Asha and GPA holder Ramaiah, Prema and Jayamma as parties in the suit. Without making Asha, H.M. Ramaiah, Prema and Jayamma as parties, present suit is bad for non-joinder of necessary parties. Hence it is held in the 'affirmative'.
36 O.S.No.689/2014
26. Issue No.7:- Admittedly as already discussed, suit is filed for declaration to declare the plaintiffs as absolute owners of the suit schedule properties and also for cancellation of the sale deed dated 15.04.2013. Surprisingly the sale deed of Asha executed by Jayamma and her daughter Prema through their GPA holder H.M. Ramaiah is not sought for cancellation. Without cancellation of the said sale deed dated 04.12.2003, present suit in the present form is not maintainable. Hence it is held in the 'negative'.
27. Issue Nos.8 and 9:- When the plaintiffs are not able to establish their claim, certainly they are not entitled for declaration, because when they seeks for declaration, possession and mandatory injunction, definitely they should have challenge the alienation made by the GPA holder H.M. Ramaiah on behalf of Jayamma and Prema. Without asking the said relief seeking for only declaration of ownership and possession in the absence of clear cut proof regarding oral partition, they are not entitled for the reliefs as claimed against the defendants. When the plaintiffs 37 O.S.No.689/2014 are not entitled for said reliefs, definitely they are also not entitled for mandatory injunction. Hence issue Nos.8 and 9 are held in the 'negative'.
28. Issue No.10:- When issue Nos.8 and 9 are held against the plaintiffs, certainly the defendants are not liable to handover vacant possession of the suit property. Hence issue No.10 is also held in the 'negative'.
29. Learned counsel for plaintiffs has relied upon the decision reported in 44 Calcutta 186 (PC) regarding attestation of the document. Of course attestor need not know the contents of the document. But here P.W.1 who has signed Ex.D.1 the confirmation deed, has fails to explain why his signature is obtained on Ex.D.1 as a witness. It appears that he was knowing about the transaction, i.e., GPA executed by Jayamma and Prema in favour of H.M. Ramaiah much earlier to Ex.D.1. To minimize the risk, his signature might have been obtained on Ex.D.1 and he knowing fully well about the same, has signed it. But when question is posed to him regarding Ex.D.1, he has clearly 38 O.S.No.689/2014 admitted his signature, but he disputed that he is not knowing the contents. But he is not a layman and he is educated man who has signed it in the Sub-Registrar office and nobody has expected that he is not knowing the contents of the documents has signed Ex.D.1 as witness. Hence this decision will not come to the aid of the plaintiffs.
The learned counsel for plaintiff has relied upon another decision reported in AIR 1978 Allahabad 318 (Smt. Ram Peary and others vs. Gauri and other) It is in respect of Section 52 of T.P. Act regarding lis pendence. He relied upon this decision because Asha the vendor of the defendants has filed suit against Jayamma, Prema and vendors of the plaintiffs for the relief of permanent injunction contending that her possession needs to be protected and the same is withdrawn on 16.03.2013 and the property is sold on 15.03.2013. To say that said transaction is hit by lis pendence this decision is relied upon. Of course sale is made by Asha during pendency of the suit, however she only has withdrawn the suit and in the said suit 39 O.S.No.689/2014 there was no issue of title. The said suit was filed by her for protection of her possession. When she has sold the property, naturally she has withdrawn it. Section 52 of T.P. Act will operate when there is a question of title is involved and the same is sold. But here there is no question of title is involved in the said suit and even otherwise the defendants who have purchased the property have stepped into the shoes of Asha and it is for them to sought for permanent injunction. This decision also will not come to the aid of the plaintiffs.
Another decision reported in (2007) 2 Supreme Court Cases 551 (Prem Lala Nahata and another vs. Chandi Prasad Sikaria) it is in respect of Order 1 Rule 2, 3-A, 4, 5 of CPC regarding mis-joinder of parties or cause of action. This decision also will not come to the aid of the plaintiffs, because plaintiffs have sought for cancellation of the sale deed executed by Asha without making her as a party and they have also not challenged the sale deed executed by the GPA holder H.M. Ramaiah in favour of Asha. Without asking for cancellation of the 40 O.S.No.689/2014 earlier sale deed, seeking for cancellation of present sale deed without impleading the necessary parties, this decision will also not applicable.
30. While arguing learned counsel for defendants has relied upon the decision reported in AIR 1977 Karnataka 99 (Chikkathamaiah and others vs. Chikkahutchiah and others) wherein it is held that "suit for declaration of title and injunction, cancellation of sale deed not sought for, the suit not maintainable."
Herein also though the plaintiffs have sought for cancellation of sale deed executed by Asha in favour of the defendants, they have not sought for cancellation of sale deed of Asha executed by H.M. Ramaiah. Hence the present decision is applicable to the facts on hand.
Another decision reported in AIR 2000 Madras 465 (S. Madasamy Thevar vs. A.M Arjuna Raja) is under Section 34, 41 of Specific Relief Act wherein it is held that "suit for declaration of title and consequential injunction, burden to prove 41 O.S.No.689/2014 his right and possession over the properties is on plaintiff - Failure of plaintiff to prove his clear title to property, is not entitled for declaration" and in this case also plaintiffs have not able to prove their case. Hence this decision is applicable to the case on hand.
Another decision reported in (2007) 2 Supreme Court Cases 404 (Hardev Singh vs. Gurmail Singh (Dead) by L.Rs.) It is in respect of Section 52 of T.P. Act. In the said decision in para 18 it is discussed that:
"Section 52 of the Act merely prohibits a transfer. It does not state that the same would result in an illegality. Only the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect."
This is also applicable to the facts on hand, because initial suit by Asha was for permanent injunction and no title was in issue. During the pendency of the suit, defendants have 42 O.S.No.689/2014 purchased the property. There is no any result in that suit. Hence it is applicable to the facts on hand.
31. Issue No.11:- For the foregoing reasons and in view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiffs is dismissed.
No order as to costs.
Draw a decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 4th day of March, 2020.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 43 O.S.No.689/2014 SCHEDULE Item No.1:
All that piece and parcel of vacant site bearing No.6 in property No.8/3 Bruhath Bengaluru Mahanagara Palike Form-B Serial No.775 situate at Hennur, Kasaba Hobli, Bengaluru North Taluk coming under the jurisdiction of Bruhath Bengaluru Mahanagara Palike, measuring East to West 44 feet and North to South 65 feet and bounded on the: East by: Site No.7 West by: Site No.5 North by: Site belonging to Puttannappa and South by: 25 Feet Road Item No.2:
All that piece and parcel of vacant site bearing No.7 in property No.8/3 Bruhath Bengaluru Mahanagara Palike Form-B Serial No.427 situate at Hennur, Kasaba Hobli, Bengaluru North Taluk coming under the jurisdiction of Bruhath Bengaluru Mahanagara Palike, measuring East to West 51 feet and North to South 63 feet and bounded on the: East by: 30 feet road West by: Site No.6 North by: Site belonging to Devanna and South by: 25 Feet Road 44 O.S.No.689/2014 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Allah Bakash
P.W.2: Lokesh
(b) Defendant's side :
D.W.1: Ramesh Gowda
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Certified copy of sale deed dated 15.04.2013 Ex.P.2: Certified copy of sale deed dated 19.02.2011 Ex.P.3: Certified copy of sale deed dated 19.02.2011 Ex.P.4: Certified copy of judgment in R.F.A.No.43/2005 Ex.P.5: Certified copy of decree in R.F.A.No.43/2005 Ex.P.6: Certified copy of order sheet in O.S.No.4105/2012 Ex.P.7: Certified copy of memo in O.S.No.4105/2012 Ex.P.8: Certified copy of plaint in O.S.No.4105/2012 45 O.S.No.689/2014 Ex.P.9: Certified copy of written statement in O.S.No.4105/2012 Ex.P.10: Certified copy of encumbrance certificate Ex.P.11 to 8 Photographs with CD P.19:
Ex.P.20: Certified copy of judgment in MFA No.4686/2014 Ex.P.21: Sale deed dated 19.02.2011 Ex.P.22: Sale deed dated 19.02.2011 Ex.P.23 & Registered confirmation deeds dated P.24: 19.07.2012 Ex.P.25 to 3 Form B property register P.26:
Ex.P.28 to Tax paid receipts P.39:
Ex.P.40 to 12 acknowledgments P.51:
Ex.P.52 to Copy of FIR and complaint ( 4 in number) P.55:
(b) Defendants side :
Ex.D.1: Confirmation deed dated 12.09.2012 Ex.D.1(a) Signatures of P.W.1 & (b):
Ex.D.2: Sale deed dated 15.04.213 Ex.D.3: Sale deed dated 04.12.2003 Ex.D.4: Khatha certificate Ex.D.5: Khatha extract Ex.D.6: Assessment extract Ex.D.7: Khatha certificate Ex.D.8: Assessment extract Ex.D.9: Khatha certificate Ex.D.10: Assessment extract 46 O.S.No.689/2014 Ex.D.11 to 10 Tax paid receipts D.20: Ex.D.21: Building licence Ex.D.22: Blue print Ex.D.23: Another building licence Ex.D.24: Blue print Ex.D.25: Receipt Ex.D.26: Another receipt Ex.D.27: BWSSB card Ex.D.28: BWSSB receipt Ex.D.29: BWSSB receipt Ex.D.30: BWSSB work order Ex.D.31: BWSSB application Ex.D.32: BESCOM work order Ex.D.33: BESCOM bill Ex.D.34: BBMP acknowledgment Ex.D.35: BBMP acknowledgment Ex.D.36: BBMP acknowledgment Ex.D.37: Tax paid receipt Ex.D.38: BBMP acknowledgment Ex.D.39: BBMP acknowledgment Ex.D.40: Encumbrance certificate Ex.D.41: Encumbrance certificate Ex.D.42: Receipt dated 10.022004 for having paid betterment charges Ex.D.43: Certified copy of deed of confirmation dated 12.09.2012 Ex.D.44: Certified copy of sale deed dated 30.07.1037 Ex.D.45: Typed copy of Ex.D.44 Ex.D.46: Certified copy of plaint in O.S.No.6093/1994 Ex.D.47: Certified copy of written statement in O.S.No.6093/1994 47 O.S.No.689/2014 Ex.D.48: Certified copy of judgment in O.S.No.6093/1994
Ex.D.49: Certified copy of order passed in R.F.A.No.1551/2012 Ex.D.50: Certified copy of petition in FDP No.124/2017 Ex.D.51: Certified copy of objections in FDP No.124/2017 Ex.D.52: Certified copy of entire order sheet in FDP No.124/2017 Ex.D.53: Certified copy of judgment and decree in O.S.No.5753/2008 Ex.D.54: Certified copy of judgment and decree in O.S.No.5782/2008 Ex.D.55: Certified copy of judgment and decree in O.S.No.5186/2008 Ex.D.56: Certified copy of judgment and decree in O.S.No.5818/2008 Ex.D.57: Certified copy of judgment and decree in O.S.No.5842/2008 Ex.D.58: Certified copy of judgment and decree in O.S.No.5843/2008 Ex.D.59: Certified copy of judgment and decree in O.S.No.5845/2008 Ex.D.60: Certified copy of judgment and decree in O.S.No.5846/2008 Ex.D.61: Certified copy of judgment and decree in O.S.No.5976/2008 Ex.D.62: Certified copy of judgment and decree in O.S.No.5977/2008 Ex.D.63: Certified copy of judgment and decree in O.S.No.5978/2008 Ex.D.64: Certified copy of judgment and decree in O.S.No.6687/2008 48 O.S.No.689/2014 Ex.D.65: Certified copy of judgment and decree in O.S.No.6686/2008 Ex.D.66: Certified copy of judgment and decree in O.S.No.8209/2010 Ex.D.67 & Two photographs D.68:
Ex.D.69 CD
Ex.D.70 to Photographs
D.83:
Ex.D.84: CD
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.