Bangalore District Court
Shankarappa vs Kalaivani on 28 July, 2025
KABC010242582016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
:PRESENT:
Smt. Nirmala Devi. S. B.Sc., LL.B.,
LI ADDL.CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
DATED This the 28th day of July 2025
O.S.NO. 7334/2016
PLAINTIFF/S 1.SRI. SHANKARAPPA
S/O. LATE NARAYANA REDDY,
AGED ABOUT 58 YEARS,
R/AT. NO.E-841 AND 2, II
CROSS, BABU REDDY HOUSE
ROAD, ROOPENA AGRAHARA,
HOSUR ROAD, BOMMANAHALLI,
MADIWALA POST,
BENGALURU 68.
(Pl By Sri. MNN. Advocate)
Versus
DEFENDANT/S 1.SMT. KALAIVANI
W/O. GOPI,
D/O. LATE NAGAMMA G.
AGED ABOUT 37 YEARS,
O.S.No. 7334/2016
2
R/AT MATHURPATHY (VIII),
MARTHUR (P.O),
POCHAMPALLI TALUK,
KRISHNAGIRI DIST-635203 (T N)
2:SRI. ARVIND
S/O. MR. VENKATESH
& LATE USHA
(D/O. LATE NAGAMMA)
AGED ABOUT 24 YEARS,
R/AT NO.122
JUNJUPALLI VILLAGE
BANDARPALLI POST
NEAR VINAYAKA TEMPLE
KRISHNAGIRI DIST 635203 (T
N ).
3: SMT. MONIKA
D/O. MR. VENKATESH
& LATE USHA
(D/O. LATE NAGAMMA)
AGED ABOUT 24 YEARS,
R/AT NO.122
JUNJUPALLI VILLAGE
BANDARPALLI POST
NEAR VINAYAKA TEMPLE
KRISHNAGIRI DIST 635203 (T N )
(D 1 By Sri. NS, Advocate)
(D 2 & 3 By Sri. PG, Advocate)
Date of Institution of the 18.10.2016
suit
Nature of suit Specific performance
O.S.No. 7334/2016
3
Date of commencement 08.01.2020
of recording of evidence.
Date on which judgment 28.07.2025
was pronounced.
Total Duration. Years Months Days
08 09 10
LI ADDL.CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ACCJ, BANGALORE
JUDGMENT
The plaintiff has filed this suit for cancellation of registered Gift deed dtd: 4.6.2014, for specific performance of agreement of sale dtd: 10.10.2013 and alternatively for refund of advance amount of Rs. 9 lakhs with interest at 18% including the duty and penalty paid before the District registrar and Deputy Commissioner of Stamp on mortgage deeds and agreement of sale.
O.S.No. 7334/2016 4 The defendant No.1 has filed counter claim for the recovery of Rs, 82,000/- being the arrears of rent, for damages at the rate of Rs. 5,000/-/p.m. and for mandatory injunction to direct the plaintiff to hand over vacant possession of the B & C schedule properties.
2. The brief case of the plaintiff are as follows:-
The mother of the first defendant and grand mother of defendants No.2 and 3 by name Nagamma G. D/o. Govinda swamy had purchased B schedule property from Sri. Basappa reddy vide registered sale deed dtd: 2.2.2001 for a sum of Rs. 75,000/-. She has also purchased C schedule property from one K. Perumal vide registered sale deed dtd:
20.1.2011 for Rs. 1,50,000/-. Thus she was the absolute owner in possession of B and C schedule properties.
3. Nagamma's husband is no more and she has got 2 daughters by name Usha and Kalaivani. Since Usha passed O.S.No. 7334/2016 5 away, her children by name Mr. Aravind and Mrs. Monika have been made as defendants No.2 and 3. The plaintiff has been inducted as a mortgagee for the eastern portion of first floor of A schedule property for mortgage amount of Rs. 40,000/- on 1.1.2000 by Nagamma G. On 27.9.2006 said mortgage amount was enhanced to Rs. 70,000/-, again on 1.1.2013 mortgage amount enhanced to Rs. 1,50,000/-. In this regard Nagamma G had entered into mortgage agreement with plaintiff for a sum of Rs. 1,50,000/-. Said mortgage agreement dt: 1.1.2013 was duly registered before the Dist. Registrar and Deputy commissioner of stamps, Jayanagar on 21.1.2016.
4. The plaintiff has been inducted as mortgagee for the western portion of the first floor of A schedule property for a mortgage amount of Rs. 1,50,000/- by Nagamma G and she has executed mortgage agreement dtd: 11.3.2013 for a sum of Rs. 1,50,000/-. Said agreement has been duly registered before the Office of the Dist. Registrar and Deputy commissioner of stamps Jayanagar, on 21.1.2016.
O.S.No. 7334/2016 6 Subsequently Nagamma G has entered into an agreement of sale dtd: 10.10.2013 with plaintiff for a sum of Rs. 24 lakhs for the entire A schedule property and to hand over the possession of the first floor portion which were in possession and enjoyment of the plaintiff for mortgage amount of Rs. 1,50,000/- + 1,50,000/-. He has paid Rs. 6 lakhs by way of cash to Nagamma G on 10.10.2013, it was agreed by both the parties that balance consideration of Rs. 15 lakhs to be paid by the plaintiff within a period of 3 months from the date of agreement of sale dtd: 10.10.2013. Said agreement has been duly registered before the Dist. Registrar and Deputy commissioner of stamps, Jayanagar on 21.1.2016.
5. The plaintiff had arranged the balance sale consideration amount with HDFC Bank and was ready with pay order/Bankers cheque for balance amount of Rs. 15 lakhs and waited before the concerned Registrars office under intimation to Smt. G. Nagamma for coming and executing the registered sale deed for getting executed O.S.No. 7334/2016 7 registered sale deed in his favour during the second week of January 2014. But she failed to come and register the sale deed in favour of the plaintiff.
6. Subsequently he came to know that on 29.9.2016 when he obtained Gift deed dtd: 4.6.2014 and encumbrance certificate from the concerned Sub-registar's office at Bommasandra, Bengaluru that said Nagamma G has executed gift deed in favour of defendants No. 1 and duly registered the same on 4.6.2014 before the Sub-registrar, Bommasandra in respect of A schedule property, which includes B and C schedule properties. The said Nagamma G died on 4.1.2015 at Kuppam Medical institution hospital, Kuppam, Andra pradesh due to old aged ailments.
7. After the demise of Nagamma G, he requested the defendants to receive balance consideration and to execute the registered sale deed in his favour. Since they postponed the same on one or other pretext, he got issued legal notice to defendants on 29.2.2016 demanding to execute sale deed in his favour within 15 days. The said legal notice served to O.S.No. 7334/2016 8 defendants by RPAD. The notice sent to defendants No. 2 and 3 returned unserved with a shara gone to Chennai. But the legal notice sent to defendants No.2 and 3 through ordinary post have been served. The said defendants have issued reply notice on 10.4.2016. But the defendants have not complied with the legal demand notice by receiving the balance sale consideration and hence he constrained to file the present suit for cancellation of Gift deed and for specific performance of the contract.
8. Defendant No.1 appeared through her advocate and filed written statement along with counter claim under Order 8 Rule 6(a) of CPC. She has totally denied the alleged mortgage and sale transactions with the plaintiff by late Nagamma G. This defendant has contended that on comparison of signatures of Nagamma G found in the admitted documents i.e., Gift deed dtd: 4.6.2014 and disputed signatures on the alleged agreement of sale dtd :10.10.2013 and the mortgage deed dtd: 1.1.2013 and 11.3.2013 it is clear that the signatures are totally different O.S.No. 7334/2016 9 and being fabricated by the plaintiff in order to knock off entire A schedule property after the demise of Nagamma G. If at all he had any nature of transaction with Nagamma G or she had executed any documents in his favour, then nothing prevented the plaintiff to institute suit against Nagamma G during her lifetime. But the present suit has been filed after the demise of Nagamma G for sole reason that the plaintiff has fully aware of i.e., Nagamma G would have alive, it would be impossible for him to prove his fabricated documents since she will be able to demonstrate the falsity of the documents relied by the plaintiff.
9. That Nagamma G gifted the property in favour of this defendant on 4.6.2014. If at all any documents were executed by deceased Nagamma G in favour of the plaintiff, then definitely he would not have kept quite and question her acts and would not have allowed her to enjoy her right, title and interest. This aspect itself clearly proves that plaintiff has approached this court with unclean hands and not entitled for the discretionary relief.
O.S.No. 7334/2016 10
10. The A schedule property consisting of ground and first floor, in the ground floor there is a residential portion and a shop, in the first floor there are 2 portions of residential houses. In the ground floor i.e., in the residential portion, the sister of Nagamma G is residing and shop premises was leased in favour of a tenant and now it is fallen vacant due to unlawful interference by the plaintiff. Therefore, the first floor is concerned, in one portion Nagamma G was residing during her life time and the other portion was fallen vacant. The plaintiff herein had requested Nagamma G to accommodate him for few months since he was thrown out by his landlord where he was previously residing. The plaintiff came in contact with Nagamma G when she purchased a portion of A schedule property from her vendor Perumal since the plaintiff was doing real estate business and he continued to do the said business even today. Deceased G. Nagamma took the plaintiff in her confidence and permitted him to stay in one portion of the residential portion in the first floor and she O.S.No. 7334/2016 11 continued to stay in another portion. Since the relationship between Nagamma G and the plaintiff was cordial, she being illiterate and innocent lady, did not insisted for execution of any documents regarding the permission granted by her to the plaintiff to reside in a portion. The plaintiff was paying monthly rent of Rs. 2,000/- to Nagamma G. The first defendant often visiting Nagamma G and to provide financial assistance to her since she was earlier doing vegetable vending business and due to her old age, she could not continue her business. The plaintiff is very well aware about the execution of the Gift deed dtd:
4.6.2014 and on the very same day itself because he assisted Nagamma G at the time of execution of Gift deed in favour of defendant, he had also accompanied them to Sub-
registrar's office for the purpose of registration as he is having good acquaintance with registering authority.
11. Smt. Nagamma G was not an uneducated lady, she was only knew to sign in Tamil and she used to sign her name with her initial as "G". Whereas the signatures found O.S.No. 7334/2016 12 in the documents produced by the plaintiff along with plaint, there is no initial of Nagamma G on any of the documents. Similarly on comparison of the signatures found in the Gift deed dtd: 4.6.2014 and the signatures found in the documents produced by the plaintiff makes it clear the same is fabricated by the plaintiff.
12. On perusal of records, he sought the main relief of declaration and the cancellation of the Gift deed dtd:
4.6.2014 in respect of the A schedule property and the consequential relief is being specific performance of alleged agreement of sale. Therefore the said reliefs (a) and (b) runs counter to each other especially when the plaintiff himself admits that he not at all acquired ownership over the A schedule property on the date of institution of suit. The question of seeking the relief of declaration in respect of the gift deed will not raise at all for consideration as he did not acquire right of ownership. Hence the suit for the relief of declaration is liable to be dismissed. The plaintiff is not entitled for the consequential relief and alternative relief.
O.S.No. 7334/2016 13 Even according to the plaintiff, he transacted with deceased Nagamma G on different dates in respect of different portions of A schedule property. As such the cause of action for the plaintiff in respect of each and every transaction will be distinct and separate. Even the plaintiff has specifically pleaded and stated whether he has performed the obligation or has committed any nature of breach with regard to performance of said obligation in favour of the defendant. Only in such event the cause of action to sue will accrues in his favour. But there is no pleading regarding cause of action in the plaint. Hence the suit is liable to be dismissed for want of cause of action under Order 7 Rule (d) of CPC.
13. It is further contended that when the deceased mother of this defendant Nagamma G purchased a portion of A schedule property from her vendor Perumal, since then the plaintiff who doing real estate business was accompanied her to the sub-registrar's office along with Perumal, first defendant came in contact with plaintiff only at the time of purchasing of a portion of the A schedule O.S.No. 7334/2016 14 property. The plaintiff also subscribed his signature to the sale deed as a witness. Since Nagamma G was doing vegetable business, the plaintiff used to purchase vegetables from her frequently and she used to believe him as a good person and therefore he took her innocence and goodness for his advantage and benefit and requested her to accommodate him for a few days.
14. It is further contended that plaintiff did not vacate and hand over vacant possession of B schedule property to Nagamma G. On the other hand after the demise of Nagamma G, he stopped paying monthly rent of Rs. 2,000/-. He broke open the lock of the premises where Nagamma G was residing and occupied the same unauthorizedly during May 2016. When this defendant questioned the plaintiff about his conduct, then he said he is having alternative accommodation and he will vacate B and C schedule properties and also pay the arrears of rent. Since this defendant called upon the plaintiff to vacate B and C schedule properties, he started interfering with the O.S.No. 7334/2016 15 tenants who was carrying on the business in the shop situated in the ground floor, he vacated the premises and hand over key to this defendant. The plaintiff has put one more lock to the shop premises and he has not allowed any other person to occupy the said shop premises. On the other hand, he threatened and abused the defendant in filthy language and repeatedly called upon them to vacate and hand over vacant possession otherwise he will throw them to street. But due to the intervention of neighbours of the A schedule property, the plaintiff could not succeed in dispossessing them from the ground floor residential portion.
15. This defendant called upon the plaintiff to fix a specific date for receiving vacant possession and also for payment of arrears of rent. But he has fabricated the suit documents and filed the present false suit. This defendant has not initiated any other proceedings for recovery of physical possession from the plaintiff. In such circumstances, she has filed counter claim for the relief of O.S.No. 7334/2016 16 mandatory injunction against the plaintiff to hand over vacant possession of the B schedule property to her. This defendant has filed counter claim for recovery of arrears of rent in a sum of Rs. 82,000/- and had paid court fee. Since the agreement of sale is not a registered document and the duty and penalty paid cannot be treated that it as a registered document in the eye of law. Based on these contentions this defendant prayed to dismiss the suit and to decree the counter claim.
16. Defendants No. 2 and 3 have filed separate written statements and have admitted the plaint averments and admitted the receipt of legal notice and reply given by them. They have specifically admitted that their grand mother had entered into an agreement of sale dtd: 10.10.2013 with plaintiff and prayed to decree the suit.
17. The plaintiff has filed written statement to the counter claim of the defendant No.1. He has denied the entire written statement contentions except the O.S.No. 7334/2016 17 relationship of the Ist defendant with the deceased Smt. Nagamma G.
18. He has denied that he has occupied 'B' and "C" schedule as a monthly tenant under the deceased mother of the Ist defendant and used to pay rent at the rate of Rs. 2,000/- p.m. and that after the demise of her mother, he has not paid rent and he is in arrears of rent in a sum of Rs. 82,000/- from May 2015 to 31.5.2018. He has contended that there is no cause of action for the counter claim. He has contended that in the ground floor the sister of Smt. Nagamma G by name Mrs. Mallika and Mrs. Savithri are residing and prayed to dismiss the counter claim.
19. On the basis of the above pleadings of the parties, the following issues have been framed by my learned predecessor in office;
1. Whether the plaintiff proves that on 01.01.2013 again the mortgage amount has been enhanced to Rs. 1,50,000/- and Smt. Nagamma G had entered into a registered mortgage agreement with him for a sum of Rs. 1,50,000/- for the O.S.No. 7334/2016 18 eastern portion of first floor of A schedule property?
2. Whether the plaintiff prove that he has been inducted as mortgagee for the western portion of first floor of A schedule property for the mortgage amount of Rs. 1,50,000/- and that Smt. Nagamma G. had entered into a registered mortgage agreement dtd: 11.3.2013 ?
3. Whether the plaintiff prove that the agreement of sale dated 10.10.2013 was entered into between him and Smt. Nagamma G. for a sum of Rs. 24 lakhs for the entire A-schedule property and handed over possession of the first floor portion of A-schedule property to him?
4. Whether the plaintiff proves that he had given Rs. 6,00,000/- by way of cash to Smt. Nagamma G on 10.10.2013 and agreed by both the parties that the balance consideration of Rs. 15 lakhs has to be paid by the plaintiff to the said Smt. Nagamma G. within 3 months from the date of agreement of sale dated 10.10.2013?
5. Whether the plaintiff was/is ready and willing to perform his part of the contract?
6. Whether the plaintiff proves the alleged interference of the defendants?
7. Whether the defendant No.1 prove that her mother deceased Smt. Nagamma G. had gifted A-
schedule property in her favour under a registered Gift Deed dated 04.06.2014 and she is having title over the said property?
O.S.No. 7334/2016 19
8. Whether the defendant No.1 prove that the deceased Smt. Nagamma G. permitted the plaintiff to stay in one portion of the residential portion of the first floor and during the life time of Smt. Nagamma G. he was paying monthly rent of Rs. 2,000/- to her?
9. Whether the defendant No.1 prove that after the death of Smt. Nagamma G. the plaintiff broke open the lock of the premises where Smt. Nagamma G. was residing and he occupied the said premises unauthorizedly in the month of May 2016?
10. Whether the defendant No.1 prove that after the death of Smt. Nagamma G. the plaintiff stopped in paying monthly rent of Rs. 2,000/- to her?
11. Whether the defendant No.1 prove that the plaintiff is due in a sum of Rs. 82,000/- towards arrears of rent from January 2015 to 31.5.2018?
12. Whether the plaintiff is entitled for the reliefs as sought?
13. Whether the defendant No.1 is entitled for the counter claim as sought?
14. What order or decree?
20. In order to substantiate the plaint averments, the plaintiff got examined as PW 1 and got examined 2 attesting witnesses and another person as Pws-2 to 4 and O.S.No. 7334/2016 20 the son and wife of plaintiff is examined as PWs 5 and 6 and got marked documents at Ex.P1 to P33. In order to rebut the oral and documentary evidence placed on record by the plaintiff, the defendant No.1 got examined as DW-1 and got marked documents at Ex.D-1 to D-24.
21. Heard the arguments of the learned counsel for the plaintiff and he has also filed written arguments and heard the arguments of learned counsel for defendant No.1, he has also filed written arguments.
22. My answer 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 Negative,
Issue No.6 : In the Negative
Issue No.7 : In the Affirmative,
Issue No.8 : Partly in the Affirmative,
Issue No.9 : In the Negative,
Issue No.10 : In the Negative,
Issue No.11 : In the Negative,
Issue No.12 : In the Negative,
O.S.No. 7334/2016
21
Issue No.13 : In the Negative,
Issue No.14 : As per the final order,
for the following.
REASONS
23. Issues No.1 to 4 and 8 : Since these issues are inter-related with each other, to avoid repetition, these issues are discussed together.
24. According to the plaintiff, the deceased Smt. Nagamma G D/o. Govinda swamy was the absolute owner and in possession of the suit schedule A, B and C properties having purchased the same from one Sri. Basappa Reddy vide registered sale deed dtd: 2.2.2001 and from K. Perumal vide registered sale deed dtd: 20.1.2011. She had two daughters namely Smt. Usha and Smt. Kalaivani. Smt. Usha passed away leaving behind her two children by name Aravind and Monika, who have been arrayed as defendants No.2 and 3. Regarding these plaint averments, there is no dispute between the parties. However the defendant No.1 has produced original sale deeds pertaining to the suit O.S.No. 7334/2016 22 schedule properties at Ex. D 1 to 3. Therefore Smt. Nagamma G was the absolute owner of suit schedule properties is not in dispute.
25. According to the plaintiff, he was inducted as a mortgagee for the eastern portion of first floor of A schedule property for mortgage amount of Rs. 40,000/- on 1.1.2000 by Smt. Nagamma G and the said mortgage amount was enhanced to Rs. 70,000/- as on 27.9.2006 and further enhanced to Rs. 1,50,000/- as on 1.1.2013. In this regard Smt. Nagamma G entered into mortgage agreements dt:
1.1.2013 for a sum of Rs. 1,50,000/-, the said agreements were duly registered before the office of Dist. Registrar and Dy. Commissioner of stamps on 21.1.2016. Further he has averred that he was inducted as a mortgagee in respect of the western portion of the first floor of A schedule property for a mortgage amount of Rs. 1,50,000/- vide mortgage agreement dt: 11.3.2013 and the same is duly registered on 21.1.2016 before the Dist. Registrar and Dy. Commissioner of stamps, Jayanagar, Bengaluru. The first defendant who O.S.No. 7334/2016 23 is a contesting defendant has disputed the said plaint averments and contended that the plaintiff was in a permissive possession as a tenant under her mother Smt. Nagamma G and paying the rent of Rs. 2,000/- p.m.
26. In order to substantiate the said plaint averments, the plaintiff has relied on Ex. P-1 purported to be original mortgage agreement, which is dt: 1.1.2013 and Ex. P-2 which is dt: 11.3.2013. As he has not produced the previous mortgage agreements on the ground that the same were in custody of Smt. Nagamma G. He tried to summon the originals from defendant No.1, as he could not secure the same, he has relied on the secondary evidence at Ex. P- 32, which is a xerox copy of the document dt: 1.10.2004 titled as "ಮನೆ ಭೋಗ್ಯದ ಕರಾರು ಪತ್ರ" and Ex. P-33 which is a xerox copy of document titled as "ಮನೆ ಭೋಗ್ಯದ ಕರಾರು ಪತ್ರ" dtd: 27.9.2006. Thus as per the plaint averments and the testimony of PW-1, he was a mortgagee in the first floor of suit A schedule property. But according to the defendant No.1, he was a tenant under her deceased mother Smt. O.S.No. 7334/2016 24 Nagamma G and he was paying rent of Rs. 2,000/- per month. Therefore the documents at Ex. P-1, P-2, P-32 and P-33 have been disputed by the first defendant.
27. On perusal of said Ex. P-1 and P-2, the said documents are unregistered documents titled as " ಮನೆ ಭೋಗ್ಯದ ಕರಾರು ಪತ್ರ". As per the said documents he paid a deficit stamp duty and penalty on 21.1.2016 before the Dist. Registrar and Dy. Commissioner of stamps, Jayanagar. Therefore both these documents are not registered and are unregistered documents. On perusal of the recitals of said documents, said agreement is for a period from 1.1.2013 to 1.1.2016 and 1.4.2013 to 1.4.2016 respectively. Thus, the said agreement is for a period of more than 1 year. Therefore the said documents titled as ಮನೆ ಭೋಗ್ಯದ ಕರಾರು ಪತ್ರ means a "lease agreement" and not a "mortgage agreement"
as pleaded by the plaintiff. No-doubt that it is settled law that the title/caption of the document is not determinative of the nature and character of the document/instrument though the name usually gives some indication of the O.S.No. 7334/2016 25 nature of documents in view of the decisions of Hon'ble Supreme Court reported in (2008)4 SCC 451 (B.K.Muniraj Vs. State of Karnataka;(2016)8 SCC 429 (Nonga Deniel Babu Vs. Sri. Vasudeva constructions & Ors.) However the contents of Ex. P-1 and P-2 does not prove that the said documents are mortgage agreements as there is no essential ingredients of mortgage. As per the said documents the plaintiff was allowed to occupy a portion of A schedule property i.e., B schedule without rent and hence it is a lease agreement.
28. Therefore, there is inconsistency in the plaint averments and documentary evidence, which go to the very root of the plaintiffs case. Further as the said documents are the lease agreements for a period of more than one year, the said documents are compulsorily registerable and therefore the said documents were accepted subject to objections of the advocate for defendant No.1. Therefore as the said lease agreements are for a period of more than 1 year, they are compulsorily registrable under Sec. 17(1) (d) O.S.No. 7334/2016 26 of Registration Act. Mere payments of deficit stamp duty & penalty will not cure the said defect and therefore they are inadmissible documents and based on the said documents, the plaintiff cannot prove that he was a mortgagee in the suit schedule B & C properties i.e., first floor for a sum of Rs.1,50,000/- and 1,50,000/- in all Rs. 3,00,000/-. Since the defendant No.1 has admitted that plaintiff was a tenant in the eastern portion of the first floor of A schedule property and as Ex. P-32 and P-33 are related to the said portion, it is evident that he was a lessee in the said portion. In this regard in the oral evidence of Pw-1, 5 and 6, it is elicited that Smt. Nagamma G during her life time she was residing in the western portion of the first floor of A schedule property. Admittedly she passed away on 4.1.2015. So till her demise, there was no possibility for the plaintiff to occupy the entire Ist floor of the A schedule. Therefore, in view of the inconsistency in the pleadings and documentary evidence, the plaintiff has failed to prove that O.S.No. 7334/2016 27 he was a mortgagee in respect of the first floor of A schedule property prior to he entered into an agreement of sale.
29. According to the plaintiff, he and Smt. Nagamma G have entered into an agreement of sale dt: 10.10.2013 for a sum of Rs. 24 lakhs in respect of A schedule property and in this regard he has paid Rs. 6 lakhs as advance by way of cash to Smt. Nagamma G on 10.10.2013. In the cross- examination of PW-1, he has stated that they had agreed to adjust the mortgage amount of Rs. 1,50,000/-+1,50,000/- i.e., Rs. 3,00,000/- towards advance amount. Thus in all he paid Rs. 9,00,000/- as advance amount and there was a balance sale consideration of Rs. 15,00,000/- to be paid within 3 months from the date of agreement of sale and to get the registered sale deed. Further he claims that vide Ex.P-3 agreement of sale possession of the property was given. So. Sec. 53A of T.P. Act is applicable. As per Sec. 17(1A) of Registration Act, it is compulsorily registerable. So, as Ex. P-3 is not registered, the plaintiff cannot rely on it as it is inadmissible in evidence.
O.S.No. 7334/2016 28
30. But the plaintiff has pleaded that the said agreement is duly registered on 21.1.2016 before the Dist. Registrar and Dy. Commissioner of stamps, Jayanagar by paying duty and penalty. The first defendant has denied the said plaint averments and contended that the plaintiff has played fraud and colluded with the witnesses and created the agreement of sale, which is unregistered and that her mother had no intention to sell the suit schedule property nor she has received advance amount from the plaintiff. Therefore the burden of proof is on the plaintiff to prove the plaint averments that Smt. Nagamma G had agreed to sell the suit schedule property and executed an agreement of sale dt: 10.10.2013 and received Rs. 6,00,000/- in cash and Rs. 3,00,000/- which was with her as mortgage money, she had agreed to adjust the same and there was balance sale consideration of Rs. 15 lakhs. In order to prove the said plaint averments, the plaintiff has relied on the evidence of Pws 1 to 6 and documentary evidence at Ex. P-3.
O.S.No. 7334/2016 29
31. In view of the plaint averments that the agreement of sale is a registered document, on perusal of Ex. P-3, it is an unregistered document dt; 10.10.2013. There is a recital for having paid Rs. 4,50,000/- by way of cash and Rs. 1,50,000/- through cheque bearing No.528454 drawn on Syndicate Bank, Koramangala branch, Bengaluru and in all the vendor has received Rs. 6 lakhs as advance amount and there is a balance of Rs. 18 lakhs and not Rs. 15 lakhs. Thus the contents of the said agreement of sale and the plaint averments regarding payment of advance amount and balance sale consideration is concerned, there is serious discrepancy as in Ex. P-3, the balance sale consideration is mentioned as Rs. 18 lakhs. Further there is no recital regarding adjustment of Rs.1,50,000/- +1,50,000/- i.e., Rs. 3 lakhs of mortgage money by Smt. Nagamma G. Thus in the said document, there is no acknowledgment for having received Rs. 6 lakhs in cash and adjustment of Rs. 3 lakhs of mortgage money towards advance amount. Thus, Ex. P-3 is totally silent regarding O.S.No. 7334/2016 30 the previous right of the plaintiff and he was a mortgagee in the first floor of A schedule property. Therefore it creates doubt regarding the existence of Ex. P-1 and P-2. Since the first defendant has disputed the said document, in this regard, the first defendant has cross-examined PW-1 to PW-6. It is elicited from PW-1, PW-5 and 6 that since Smt. Nagamma G had no account in the bank, the plaintiff paid the advance amount of Rs. 6 lakhs in cash. There is inconsistency in the testimony of these witnesses regarding the mode of payment and the denomination of the currency notes.
32. PWs-2 and 3 are the attesting witnesses to Ex. P-3 sale agreement. In the cross-examination of PW-3 he has deposed that when the agreement of sale was typed in Bommanahalli near the office of CMC, then Smt. Nagamma G was not present and he does not know the contents of the sale agreement. Further he has stated that he does not know the age of Smt. Nagamma G at the time of agreement of sale. PW-2 has deposed that Smt. Nagamma G had not O.S.No. 7334/2016 31 given the suit property on rent to any one. Therefore the evidence of Pws- 2 and 3 is not going to help the case of plaintiff regarding the agreement of sale between the plaintiff and deceased Smt. Nagamma G.
33. Further defendant No.1 has disputed the genuineness of the said document and has taken specific contention that it is fraudulently created by the plaintiff and disputed the signature of one Smt. Nagamma G and pleaded that usually her mother Smt. Nagamma G used to sign starting with initial "G" and in Ex. P-1 to P-3 initial "G"
is missing. Therefore, in view of the said contention of first defendant, the plaintiff got appointed an handwriting expert as a Court commissioner and got referred Ex. P-1 to 3, which are disputed documents and the admitted document the registered Gift deed dt: 4.6.2014 at Ex. D-4, which are admitted signatures to the Truth Lab. After examining the said signatures the hand writing expert has submitted report dt: 23.11.2013. He has opined that the person who O.S.No. 7334/2016 32 has signed Ex. P-4 and Ex. D-4 Gift deed has not signed the disputed signatures in Ex. P-1 to P-3.
34. The disputed and the admitted signatures of Smt. Nagamma G. can be compared by this court also. The defendant No.1 has produced the original sale deeds pertaining to the suit schedule property at Ex. D-1, which is dt: 2.2.2001 for having purchased the property from Sri. Basappa reddy, Ex.D-2 which is original sale deed dt:
20.1.2011 and original sale deed dated 2.2.2001 at Ex. D-3.
In all these documents Smt. Nagamma G. who was purchaser has affixed her signature as G. Nagamma in Tamil language. Accordingly in Ex. P-32 and P-33 which are xerox copies of lease agreements dtd 1.10.2004 and 27.9.2006, which are relied by the plaintiff, the said Nagamma has signed as G. Nagamma in Tamil language. But in Ex. P-1 to P-3 which are the disputed documents, there is no initial "G" to the signature of Nagamma. Further in the Gift deed at Ex. D-4 she has signed as "G. Nagamma". The said document came into existence on O.S.No. 7334/2016 33 4.6.2014 and it is a registered document and the said document came into existence subsequent to the disputed documents at Ex. P-1 to P-3. Therefore even in the subsequent documents also she has affixed her signature as G. Nagamma in Tamil language. Therefore only in Ex. P- 1 to 3 her signature differs. Therefore it is also one of suspicious circumstances to support the contention of defendant No.1 that Ex. P-1 to 3 are created by the plaintiff. Further, PW-5 and PW-6 who are the son and wife of the plaintiff are the witnesses to Ex. P-1 and P-2, which aspect further substantiate the contention of the Ist defendant.
35. In the cross-examination of PW-1, the Ist defendant had elicited that her deceased mother was illiterate and except signing in Tamil language, she did not know Kannada language. The Ist defendant has contended that her mother was doing vegetable vending. In the cross- examination of PW-1, he has not denied the suggestion in this regard. It is also an admitted fact that Smt. Nagamma O.S.No. 7334/2016 34 G was old aged, had lost her husband and was living alone as her daughters were married and settled at Krishnagiri village at Tamil Nadu. From PW-1 it is also elicited that when Smt. Nagamma G executed the mortgage deed and the agreement of sale, then her daughters or relatives were not present. So, the decision of Smt. Nagamma G to sell the 'A' schedule was a major decision in her life. Moreover, she was aged and infirm. So, absence of her daughters or close relatives will create suspicion about Ex. P-3.
36. Further on perusal of Ex. P-1 to P-3, these documents came into existence within a short period as these documents purportedly executed between January 2013 to October 2013. The plaintiff has not pleaded about the financial necessity of the deceased Smt. Nagamma G to enter into such transactions. On perusal of the said documents there is no recital as to why she was entering into such transactions except a recital in Ex. P-3 sale agreement that she has to repay hand loans. So this is also O.S.No. 7334/2016 35 one of the aspect which create doubt about execution of Ex. P-3.
37. According to the plaintiff, he had paid Rs. 1,50,000/- each to Smt. Nagamma G when he secured the mortgage deed at Ex. P-1 and P-2. In the cross-examination he has stated that he paid the said amount in cash. He has stated that he has no documents to show that he had so much of amount at the relevant point of time. Accordingly the plaintiff has pleaded and deposed that when he secured Ex. P-3 from Smt. Nagamma G. then he paid advance amount of Rs. 6 lakhs and also he has pleaded that Smt. Nagamma G. had handed over the possession of entire A schedule property to the plaintiff, when he secured Ex. P-1 and P-2 mortgage deeds and paid Rs. 3 lakhs in all. However he has pleaded that when Smt. Nagamma G. executed Ex.P-3 agreement of sale on 10.10.2013 then she had agreed to receive balance sale consideration of Rs. 15 lakhs at the time of registration of sale deed within 3 months. As already discussed in Ex. P-3 the balance sale consideration O.S.No. 7334/2016 36 amount is shown as 18 lakhs. In this regard there is no explanation from the plaintiff. If he had paid Rs. 3 Lakhs + 6 lakhs to Smt. Nagamma G. then the balance consideration must be Rs. 15,00,000/- and not Rs. 18,00,000/- as sale consideration was fixed as Rs. 24 lakhs. According to the plaintiff in order to show that the plaintiff had so much of money, he has not produced any supporting documents. He has not pleaded in the plaint regarding his occupation and the financial back ground. However in the cross-examination he has stated that he was working as a driver in BMTC. In this regard also he has not produced the pay slip to show as to how much of salary he was drawing. He has stated that he paid Rs. 1,50,000/- through cheque to Nagamma, but since she had no bank account she insisted for payment of cash. In Ex. P-3 details of cheque has been mentioned. But the plaintiff has not produced the cheque book and the bank pass book to show that when Ex. P-3 came into existence i.e., as on 10.10.2013, he had cheque book with cheque leaves O.S.No. 7334/2016 37 bearing No. 528454 series. Therefore, it is also one of the suspicious circumstances which supports the contention of the defendant.
38. It is pertinent to note that in Ex. P-3, there is no recital regarding the possession of the plaintiff as mortgagee. EX. P-3 is totally silent about EX. P-1 and Ex. P-
2. Accordingly when he had agreed to purchase the said property then he ceases to be a mortgagee and his possession will be under the agreement of sale. Further he has pleaded in his plaint that on 10.10.2013 the possession was delivered to him. Accordingly he has pleaded that Ex. P-3 is the registered agreement of sale. Therefore the said pleading indicate that Smt. Nagamma G. in part performance of agreement of sale handed over possession of A schedule property to the plaintiff. But on perusal of Ex. P-3, there is no recital for having delivered the possession of the property to the plaintiff. Therefore, there is inconsistency between the plaint averment and the contents of Ex. P-3. There is no explanation as to why recital O.S.No. 7334/2016 38 relating to the mortgage/lease has not been mentioned in Ex. P-3. Moreover, as admitted by the witnesses Smt. Nagamma G was residing in a portion of 'A' schedule property till her death. So, the said evidence would disprove the claim of the plaintiff that she delivered western portion of the Ist floor of 'A' schedule property as per Ex. P-1 and P-2.
39. On perusal of Ex. P-3 agreement of sale dt:
10.10.2013 there is a stipulation that plaintiff purchaser has to pay the balance sale consideration of Rs. 18 lakhs within 3 months and shall secure the registered sale deed.
Accordingly there is a recital that within the said period the vendor Smt. Nagamma G. has to secure the katha and shall pay up to date taxes and has to furnish documents.
40. In this case, both parties have not produced the katha of the property, but defendant No.1 has produced the Tax paid receipts from the year 2010-11 to 2024-25. Thus, from the year 2010-11 they have paid taxes regularly and there was no arrears. Therefore the question of paying up to O.S.No. 7334/2016 39 date taxes does not arise. Further as per the oral evidence placed on record, Smt. Nagamma G. died on 4.1.2015. The plaintiff has pleaded that she died at Kuppam Medical Institute hospital at Kuppam, Andra pradesh due to old aged ailments. Thus during the period of 3 months stipulated in Ex. P-3 Smt. Nagamma G. was alive.
41. Further the plaintiff got issued legal demand notice to the legal heirs of Smt. Nagamma G. on 29.2.2016. Therefore, during the life time of Smt. Nagamma G. the plaintiff has not taken steps to secure the registered sale deed from her by paying the balance sale consideration. Therefore there is no evidence to show that during the life time of Smt. Nagamma G. Ex. P-3 came into light or it was produced before any public authority. There is no explanation in the plaint as to why plaintiff could not get registered the sale deed within 3 months as stipulated in Ex.P-3. Therefore, from the above discussions there are suspicious circumstances which will prove the defendant No.1's contention that Ex. P-3 has been created by the O.S.No. 7334/2016 40 plaintiff and that Smt. Nagamma G. had not agreed to sell the suit A schedule property for Rs. 24 lakhs and received advance amount of Rs. 6 lakhs.
42. According to the defendant No.1 as the plaintiff was thrown out of his premises and he had no house, he had requested her mother to accommodate him and hence her mother permitted the plaintiff to reside in one portion of A schedule property i.e., eastern portion of the first floor and during her life time the plaintiff used to pay monthly rent of Rs. 2,000/-. The plaintiff has denied the same and contended that he was in possession of eastern portion of A schedule property based on the mortgage deed. However as already discussed he has failed to prove Ex. P-1 and P-2 mortgage agreements are genuine documents. In this regard PW-1 and PW-6 are cross-examined, they have stated that prior to occupying the eastern portion of first floor of A schedule property as mortgagees, they were residing in a rented premises. PW-6 who is the wife of the plaintiff has stated that in the beginning they were residing in a rented O.S.No. 7334/2016 41 house at Roopena Agrahara on monthly rent of Rs. 5,000/- and in the year 2006 they occupied the house of Smt. Nagamma G. In view of the contentions taken by the first defendant, it is evident that the plaintiff and his family members are residing in the first floor of A schedule property on eastern side. However, according to plaintiffs he is in possession of the said property as a mortgagee. Further he failed to prove that he is a mortgagee in view of title in the document which is a lease agreement and not a mortgage. The first defendant has stated that since her mother had reposed confidence in the plaintiff, she had allowed him to stay in her house without a document. But in view of Ex. P-32 and P-33, the said contention is not justifiable as at undisputed point of time, the plaintiff occupied the house of Smt. Nagamma G on the basis of lease and he continued to be in possession as a lessee, as he failed to prove Ex. P-3 the agreement of sale. On perusal of Exs. P-1, 2 and 32 and 33, they are related to the period from 2006 to 2009 and from 2011 to 2013. The O.S.No. 7334/2016 42 plaintiff has not produced the document showing extension of lease period from 2009 to 2013. In any case in view of the admission of the first defendant that plaintiff is a tenant and as he failed to prove the agreement of sale, he continued to be in possession of the eastern portion of the first floor of A schedule property.
43. Regarding the rate of rent is concerned, PW-4 to 6 have cross-examined, they have stated that after the year 2000, the house rent rate of one bed room house was about Rs. 4,000 to 5,000 per month. Further it is elicited that in the area where the plaintiff is residing the monthly rent is about Rs. 6 -7,000/- p.m. and on lease a single bed room house is available for about 4 lakhs to 4 and ½ lakhs. Therefore as per the said witnesses in the year 2000 itself the rate of rent was about 4-5,000 p.m. in respect of a single bed room house in the area where the suit schedule property is situated. Therefore the contention of the defendant No.1 that plaintiff used to pay Rs. 2,000/- p.m. as rent is not proved as it is on lesser side. Therefore, it is O.S.No. 7334/2016 43 evident that plaintiff was inducted into the house by the deceased Smt. Nagamma G. as a lessee and he continued to be lessee in the said portion till her demise. Hence, I answer Issues No.1, 2, 3 and 4 in the Negative and Issue No.8 partly in the Affirmative.
44. Issue No. 7 :- In this case defendant No.1 has filed counter claim based on the Gift deed dt: 4.6.2014 and sought the relief to direct the plaintiff to pay arrears of monthly rent of Rs. 82,000/- from the month January 2015 to May 2018 and for damages for the use and occupation of B and C schedule properties at Rs. 5,000/- p.m. from the date of institution of counter claim and for mandatory injunction against the plaintiff to hand over vacant possession of the schedule B and C properties. According to the defendant No.1, her Mother Smt. Nagamma G. has executed a registered Gift deed on 4.6.2014. Accordingly she has deposed and produced the original Gift deed at Ex. D-4. The plaintiff has admitted the said document, but contended that it has been created in order to defeat his O.S.No. 7334/2016 44 right acquired through the agreement of sale. PW-5 and PW-6, who are admittedly the son and wife of the plaintiff respectively are the witnesses to Ex. P-2 Mortgage deed. These witnesses are interested parties and therefore, it does not inspire this court to believe their testimony.
45. In the cross-examination of DW-1, the plaintiff has not elicited anything in support of his claim that she has created Gift deed with an intention to defraud him. Defendants No.2 and 3 have not filed written statement or additional pleadings to the written statement of defendant No.1 and disputed the Gift deed at Ex. D-4 in favour of the Ist defendant. They have not cross-examined DW-1 to prove that the alleged Gift deed is fabricated by her. In the cross-examination of DW-1, the plaintiff has not elicited that there was no katha in respect of suit schedule property in the name of the deceased Smt. Nagamma G. But as rightly argued on behalf of defendant No.1, the plaintiff will not acquire absolute right in respect of A schedule property. In this case the plaintiff has failed to prove that deceased O.S.No. 7334/2016 45 Smt. Nagamma G. has agreed to sell the suit schedule A property in his favour. Therefore, as admittedly the deceased Smt. Nagamma G. was the owner of A schedule property, she had every right to gift the property in favour of defendant No.1, as, as on the date of said Gift her daughter Smt. Usha was no more and the defendant No.1 was the only daughter. Therefore it was natural for her to gift the property in her favour. It is also an admitted fact that the said property is a self acquired property of Smt. Nagamma G. In the cross-examination of PW-2 and 5 they have deposed that she was doing vegetable vending and they have also deposed that she was doing liquor vending. Further as per the sale deeds produced by the defendant No.1 Smt. Nagamma G. has purchased the suit schedule properties and therefore it was her self acquired properties. Therefore she had right to gift the said property in favour of defendant No.1 who was the only surviving daughter. Therefore, even though the first defendant has not examined the attesting witnesses to the said document, but O.S.No. 7334/2016 46 admittedly defendant No.1 is the daughter of Smt. Nagamma G. there is no reason to disbelieve the genuineness of the document at Ex. D-4 Gift deed. Therefore, the defendant No.1 has proved that by virtue of Gift deed dtd: 4.6.2014 she became the owner of the suit schedule properties. Hence, I answer Issue No.7 in the Affirmative.
46. Issue No. 5:- The plaintiff has averred that he was and is ever ready and willing to perform his part of contract i.e., to pay balance sale consideration of Rs. 15 lakhs to defendants and to get the registered Sale deed at his expense. In this regard he has relied on the legal demand notice produced at Ex. P-6 and the written statement of defendants No.2 and 3. But the defendants No.2 and 3 are the grand children of Smt. Nagamma and having conflicting interest with the Ist defendant as there is a registered Gift deed in her favour. Hence, the written statement of defendants No.2 and 3 cannot be taken into consideration to decide this dispute. The defendant No.1 who is the O.S.No. 7334/2016 47 contesting defendant has disputed that the plaintiff had financial capacity to pay the balance sale consideration. Moreover she has disputed the agreement of sale itself and in view of the above discussions, she has proved her contention. Further the plaintiff has specifically pleaded that after the death of Smt. Nagamma G. he requested the defendants to execute sale deed in his favour. Further he has pleaded that he had arranged balance sale consideration amount with HDFC Bank and got ready pay order/Bankers cheque for sale consideration amount of Rs. 15 lakhs and waited before the concerned Sub-registrar with an intimation to Smt. Nagamma G. for coming and executing registered sale deed during the second week of January 2014 and she failed to come and register the sale deed in his favour. In the demand notice at Ex. P-6 he has stated that he arranged the balance sale consideration amount with KARVY/DHFL bank and got ready the pay order/Bankers cheque for balance sale consideration of Rs. 15 lakhs in the first week of January 2014 and waited O.S.No. 7334/2016 48 before the concerned sub-registrar office under an intimation to Smt. Nagamma G. to come and execute registered sale deed. Therefore, the contents of Ex. P-6 regarding in which bank he had arranged money and the plaint averments are inconsistent. Further if he had arranged the said money, there was no impediment for him to produce the supporting documents. However he has not produced the supporting documents to show that during January 2014, he had Rs. 15 lakhs to pay the same towards the balance sale consideration. Further he has not pleaded and produced supporting documents to show that he is having sufficient income to pay the balance sale consideration to defendants. Though the plaintiff has claimed that in January 2014 itself he was ready to pay balance sale consideration to Smt. Nagamma G. which is 3 months period stipulated in the agreement of sale, but during the life time of Smt. Nagamma G. he has not issued demand notice calling upon her to execute registered sale deed by receiving balance sale consideration. The present O.S.No. 7334/2016 49 suit has been filed in the year 2016. Therefore if he was financially sound and able to pay the balance sale consideration, then there was no impediment for him to proceed against Smt. Nagamma G. for specific performance of contract during her life time. Therefore, the plaintiff has failed to prove his readiness and willingness to pay the balance sale consideration and to get registered sale deed in his favour. Hence, I answer Issues No. 5 in the Negative.
47. Issue No. 9 to 11 :- Since these issues are inter- related with each other, to avoid repetition, these issues are discussed together.
48. It is the case of first defendant that she is in possession of the A schedule property, thereby she pleaded that the plaintiff' is not in possession of the said properties. As per the plaint averments and also as per the oral and documentary evidence placed on record, the first floor of A schedule property is consisting of 2 portions of AC sheet roofed house. Admittedly the plaintiff is in possession of the eastern portion of the said house. Regarding western O.S.No. 7334/2016 50 portion is concerned, he has claimed the possession based on mortgage deed dtd: 11.3.2013. But as already discussed, he failed to prove the said document which is at Ex. P-2. Therefore the said document came into existence just prior to the alleged agreement of sale. Both the parties have adduced evidence to the effect that a shop premises in the ground floor has been kept under lock by both the parties. The defendant No.1 has contended that the plaintiff had broke open the door of the premises and occupied the house. In this regard she has relied on Ex. P-23 and P-24 which are endorsement dtd: 16.4.2024 and complaint dt:
24.4.2024. The said documents came into existence during the pendency of the case. She has not produced document to show that she lodged complaint before the police, when the plaintiff had broke open the door. But both parties have admitted in the cross-examination that they approached the jurisdictional police and they were advised to put lock to the door and accordingly they have kept the said premises under lock. In this regard the plaintiff has also produced O.S.No. 7334/2016 51 photographs. There is no dispute in this regard . Therefore it is evident that before filing of he present suit there was dispute between the parties wherein they tried to interfere with each other's possession of the property possessed by Smt. Nagamma G.
49. In the written statement filed by the plaintiff to the counter claim he has stated that the house situated in the ground floor has been occupied by Smt.Mallika and Smt. Savithri the sisters of deceased Smt. Nagamma G. Further in cross-examination of PW-1, he has stated that one Satya was tenant of the said portion. There is no dispute regarding the house situated at ground floor. Therefore as already pointed out the defendant No.1 has admitted that plaintiff is in possession of B & C schedule property of counter claim.
50. In view of the above discussions, the plaintiff is able to prove that he is in possession of the eastern portion of the Ist floor of A schedule property on payment of lease amount of of Rs. 1,50,000/- to Smt. Nagamma G. Therefore O.S.No. 7334/2016 52 first defendant has failed to prove that plaintiff is a tenant on monthly rent of Rs. 2,000/-. Further the first defendant has not taken steps against the plaintiff to terminate the lease or tenancy within a reasonable time after the demise of her mother Smt. Nagamma G. Therefore if he was a tenant in the suit schedule property, then there was no impediment for her to issue notice and to demand rent or to terminate the tenancy. Therefore she remained silent till the present suit is filed. Therefore it is evident that plaintiff was a lessee under Smt. Nagamma G mother of the first defendant and that he was not paying monthly rent. However defendant No.1 has failed to prove that in May 2016 the plaintiff broke open the lock of the premises and occupied the said premises unauthorisedly. According to the defendant No.1 her mother had occupied the western portion of the first floor of A schedule property. In this regard some of the witnesses have admitted that she was residing in the first floor. In the cross-examination some of the witnesses have admitted that she was residing in the O.S.No. 7334/2016 53 first floor. In the cross-examination of PW-1 he has stated that after the demise of Smt. Nagamma G her sister Mallika had occupied the house situated in the ground floor. PW-6 who is the wife of plaintiff has clearly stated that in the first floor of A schedule property in one portion Smt. Nagamma G was residing and in another portion the plaintiff and his family were residing. Therefore in view of the said evidence the defendant No.1 has proved that her mother during her life time was residing in the western portion of the first floor of A schedule property and the plaintiff had occupied the eastern portion of the first floor and that Smt. Nagamma G let out one shop and house premises in the ground floor to the tenants. In view of the above discussions, the plaintiff has failed to prove that western portion which was occupied by Smt. Nagamma G was let out on lease to him. Therefore it is evident that after her demise plaintiff tried to occupy the said portion and therefore it is kept under lock as per the advice of the police. According to the defendant No.1, her mother had reposed confidence in the plaintiff O.S.No. 7334/2016 54 and hence she had given the house on rent to the plaintiff without document. In this regard PW-1 is cross-examined. He has deposed that in the year 2000 he was inducted in to the eastern portion of Ist floor as a mortgagee by receiving Rs. 40,000/- without document. So according to him, the said mortgage continued till 2004 and thereafter he secured the mortgage deed. But there is no supporting documents.
51. As per the evidence of PW-1, he continued his possessed of A schedule property till 2013.
52. PW-4 has deposed that he is a witness to Ex. P-33, the mortgage deed dtd: 27.9.2006 and on that day plaintiff paid Rs. 30,000/- to Smt. Nagamma G. He has stated that he is residing near the suit schedule property and that from the year 2000 onwards the one bed room house in the said locality was available on a rent of Rs. 4,000-5,000/- p.m. and the advance amount for such house in the area is Rs. 22,000 to 30,000/-. Further he has stated that he has seen the plaintiff paying Rs. 70,000/- to Smt. Nagamma G This evidence is contrary to his own evidence and also the plaint O.S.No. 7334/2016 55 averments and the evidence of plaintiff that the mortgage amount enhanced from Rs. 40,000/- to Rs. 70,000/- and that he paid Additional Rs. 30,000/-So from the oral and documentary evidence placed on record, it is established that initially the plaintiff inducted as a lessee i.e., eastern portion in the Ist floor of A schedule property, which is described as 'B' schedule property. She has further contended that after the demise of her mother plaintiff has not paid the rent. Admittedly her mother died on 4.1.2015. But till filing of this suit, she has not taken legal action for recovery of rent or for eviction, even she has not replied to the notice issued by the plaintiff so as Ist defendant has not much disputed E x. P-32 and P-33, which are produced by the plaintiff to prove that he was a mortgagee and the mortgage money enhanced from time to time. The said documents are for the period from 2004 to 2009. Except the said documents, the plaintiff has not produced the mortgage deed regarding continuation of the same from 2009 to 2011. But he has produced Ex. P-1 and P-2 which O.S.No. 7334/2016 56 are disputed documents and he is not able to prove the same. So Ex. P-32 and P-33 are the only documents the plaintiff is able to place before this court.
53. So, as per the said document the lease amount till the year 2009 was Rs. 70,000/-. So, it can be presumed that the said transaction continued further. However he failed to prove that he had taken the western portion on lease for Rs. 1,50,000/-. So, as admittedly the plaintiff has been in possession of the eastern portion and Ex. P-32 and P-33 are related to the said portion. So, as initially he has been lessee of said property, the Ist defendant has failed to prove that he was a tenant and paying monthly rent of Rs. 2,000/-. So, the Ist defendant is liable to repay the said lease amount in order to vacate him.
54. In this case Ist defendant has sought possession of B and C properties. Thereby she has admitted that the plaintiff is in possession of the said properties.
55. In view of the above discussions, first defendant has failed to prove that plaintiff was a tenant in the first O.S.No. 7334/2016 57 floor of A schedule property on monthly rent of Rs. 2,000/- p.m. and thus he is in arrears of rent of Rs. 82,000/- being the rent from January 2015 to 31.5.2018. On the other hand, the plaintiff has proved that he occupied the eastern portion of first floor of A schedule property as a lessee. He was not a tenant on monthly rent of Rs. 2,000/- on the other hand it will prove that he was lessee.
56. In this case first defendant has claimed damages of Rs. 5,000/- p.m. from the plaintiff for having occupied the first floor of A schedule property. As already point out she has elicited from Pw-2 regarding prevailing rate of rent in the locality. So far as first defendant has not issued legal notice or terminating the lease of plaintiff and therefore the question of termination of tenancy or the holding over of premises by the plaintiff does not arise. Hence defendant No.1 is not entitled for damages in this case. In this regard she can workout her remedies in the appropriate proceedings. Hence the first defendant has failed to prove that the plaintiff is a tenant and is liable to pay rent of Rs.
O.S.No. 7334/2016 58 2,000/- towards arrears of rent and damages of Rs. 5,000/- p.m. Hence, , I answer Issues No. 9 to 11 in the Negative.
57. Issues No.6, 12 and 13 :
The learned counsel for the plaintiff has relied on the following decisions to establish the right of the plaintiff for specific performance.
1) AIR 2018 SC 1961(Shivaji Yellappa Patil Vs. Ranajeet Appasaheb Patil and another)
2) AIR 2018 SC 49(Balawant Vithal Kadam Vs. Sunil Baburaoi Kadam.
3) AIR Online 2024 KAR 1483.(Siddappa late. Madegowda Vs. Bhalaram.)
4) AIR online 2024 SC 281. (Chandar ban D Throough LR Sher singh Vs. Mukthiar singh)
5) 2022(1) AKR 800:: AIR online 2021 KAR 4578.( Charan Kumar V. H.R. Satish)
6)AIR Online 2025 HP 269.( Vinay Kumar Vs. Kishorilal)
7) 2018(2) ADR 629.(Ashok Kumar Vs. Rakesh Kumar)
8) AIR Online 2025 KER.56( Belwing raj V. Muttayyan(died) O.S.No. 7334/2016 59
9) 2018 AIR CC 1430.:: 2018(2) ABR 597(Shree Chaitanya Constructions Vs. Poonam Chand Dalichand Parakh)
10) 2016 AIR CC 1375.:: 2016(2) ABR 467( Krishnarao Hampanna Lokray & others V. Parvekar Hotels Pvt. Ltd., Pune. )
58. In view of findings given to Issues No.1 to 5, 7 to 11, the plaintiff has failed to prove that he was a mortgagee of A schedule property and subsequently purchased it and possession was handed over to him and consequentially continued his possession under the agreement of sale dtd:
10.10.2013 and also failed to prove his readiness and willingness to get the sale deed registered. Therefore, the decisions relied by the plaintiff are not going to help his case. Therefore the plaintiff is not entitled for the relief of specific performance of contract and also alternative relief of refund of advance amount as he failed to prove payment of advance amount to the deceased Nagamma G. Therefore the plaintiff is not entitled for the relief of specific performance or refund of advance amount. Further the first defendant O.S.No. 7334/2016 60 has failed to prove that the plaintiff is a tenant in respect of B and C schedule properties on monthly rent of Rs. 2,000/-
p.m. and he is in arrears of rent from January 2015 to 31.5.2018 in a sum of Rs. 82,000/-. Accordingly, she failed to prove termination of lease with due process of law. Therefore, she is not entitled for the relief of counter claim. Hence, I answer issues No. 6, 12 and 13 in the Negative.
59. Issue No.14 : - In view of my answer to above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed. No order as to costs.
The counter claim of the first defendant is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the stenographer grade-I, computerized and typed by her, corrected and then pronounced by me in open court, this the 28th Day of July 2025) ( NIRMALA DEVI S. ) LI ADDL.CITY CIVIL & SESSIONS JUDGE C/c. XXXVII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
O.S.No. 7334/2016 61 Plaint schedule properties Schedule A Property All the piece and parcel of the property situated at Bangalore South Taluk, Begur Hobli, Roopena Agrahara, presently comes under BBMP jurisdiction, House List Khatha No. 9/3, measuring East to west 30 feet and north to south 15 feet, total: 450 Sq.ft. Property and another property situated in the same address attached to the above property, measuring East to West: 15 feet and North to South: 10 feet; Total: 150 sqft property; both the properties totally comes to 600 sqft, RCC built ground floor and two sheet roofted houses in the first floor portion and bounded on:
East by : Raju's property, West by : Road, North by : Sampangi Ramaiah's property and South by : private house property.
The above property consists of East to West 30 ft and North to South; 20 ft, and totally 600 sq.ft. Ground floor portion RCC built house and Two portions of sheet roofed houses in the first floor includes in the said property pertaining to the above agreement of sale.
Schedule B Property All the piece and parcel of the property bearing portion of house list Katha No. 9/3, situated at Roopena Agrahara, Begur Hobli, Bangalore South Taluk, measuring East to west 30 feet and north to south 15 feet, total: 450 Sq.ft. and bounded on:
East by : Raju's house, West by : Portion of K. Perumal's shop, O.S.No. 7334/2016 62 North by : Sampangi Ramaiah's property and South by : Road, along with half square AC roofed house built in thereon, constructed withy bricks and mud, the doors and windows are made out with jungle wood, mud flooring and there is no civic amenities in the schedule property.
Schedule C Property All the piece and parcel of the property bearing portion of , House List Khatha No. 9/3, present BBMP B Katha No. 720, property No. 9/3, situated at Roopena Agrahara, Begur Hobli, Bangalore South Taluk, presently comes under BBMP, Bengaluru measuring East to west 15 feet and north to south 10 feet, total: 150 Sq.ft. Property and bounded on:
East by : Smt. Nagamma's portion of property, West by : 3 feet passage, North by : Sampangi Ramaiah's property and South by : road.
Counter claim schedule properties Schedule B Property All the piece and parcel of the property bearing portion of house list Katha No. 9/3, situated at Roopena Agrahara village, Begur Hobli, Bangalore South Taluk, measuring East to west 30 feet and North to south 15 feet, ( total: 450 Sq.ft. ) and bounded on:
East by : Raju's house, West by : Portion of K. Perumal's shop, North by : Sampangi Ramaiah's property and South by : Road, O.S.No. 7334/2016 63 along with half square AC roofed house built in thereon, constructed withy bricks and mud, the doors and windows are made out with jungle wood, mud flooring and there is no civic amenities in the schedule property.
Schedule C Property All the piece and parcel of the property bearing portion of House List Khatha No. 9/3, present BBMP B Katha Sl. No. 720, property No. 9/3, situated at Roopena Agrahara, Begur Hobli, Bangalore South Taluk, measuring East to west 15 feet and north to south 10 feet, (total: 150 Sq.ft. ) and bounded on:
East by : Portion of property belonging to Ist Deft., West by : 3 feet passage, North by : Sampangi Ramaiah's property and South by : road.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW-1 - Shankarappa, PW-2 - B. Lokanathan Achari. PW-3 - Nagabhushana @ L. Nagaraj, PW-4 - Rajagopal @ M. Gopal PW-5 - S. Srinivas. PW-6 - Smt. H. Bhagya,
Documents marked on behalf of the plaintiff/s:
Ex.P1 - House lease deed dated 01.01.2013 Ex.P2 - House lease deed dated 11.03.2013 Ex.P3 - Unregistered sale deed dtd: 10.10.2003 Ex.P4 - Certified copy of the registered Gift deed O.S.No. 7334/2016 64 Ex.P5 - E/c copy.
Ex.P6 - Copy of legal notice.
Ex.P7
to 9 - 3 postal receipts.
Ex.P10 - Postal acknowledgment
Ex.P11 - Notice.
Ex.P12 - Cover
Ex.P13 - Notice,
Ex.P14 - Cover
Ex.P15 - Reply notice,
Ex.P16 - Cover
Ex.P17 - Rough sketch
Ex.P18 - Photo,
Ex.P19 - Copy of photo
Ex.P20 - Sketch
Ex.P21 - Sketch
Ex.P22 - Office copy of notice dtd: 3.11.2022
issued to the defendant.
Ex.P23 3 postal receipts.
Ex.P24 - Photo studio receipt.
Ex.P25
to 27 - 3 postal acknowledgment
Ex.P28
& 29 - Two photographs
Ex.P30 - CD in respect of P-28 & 29
Ex.P31 - The reply dtd: 10.1.2023
Ex.P31(a) - Postal cover of Ex. P-31.
Ex.P32 - Copy of House lease deed.
Ex. P-33 - Copy of House lease deed.
List of witnesses examined on behalf of the Defendant/s:
DW-1 - Smt. Kalaivani G. Documents marked on behalf of the Defendant/s: Ex.D1 - Absolute sale deed dtd: 2/2/2001 Ex.D2 - Sale deed dtd: 20.1.2011 O.S.No. 7334/2016 65 Ex.D3 - Original Sale deed Ex.D4 - Original registered gift deed dtd: 4.6.2014. Ex.D5 to 19 - Computer generated property tax receipts.
(Marked subject to objections of the plaintiff counsel that those are xerox copies.) Ex.D20 - Office copy of the reply Notice dtd: 10.1.2023.
Ex.D21 - Postal receipt
Ex.D22 - Postal acknowledgment
Ex.D23 - Postal acknowledgment
Ex.D24 - Complaint dtd: 24.10.2024 to the
police commissioner.
( NIRMALA DEVI S. )
LI ADDL.CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
O.S.No. 7334/2016 66 Judgment pronounced in the open court (vide separate Judgment ) ORDER The suit of the plaintiff is hereby dismissed.
No order as to costs.
The counter claim of the first defendant is hereby dismissed.
No order as to costs.
Draw decree accordingly.
( NIRMALA DEVI S. )
LI ADDL. CITY CIVIL & SESSIONS JUDGE
C/c. XXXVII ADDL.CITY CIVIL &
SESSIONS JUDGE BENGALURU CITY.