Bangalore District Court
Mrs. R.Rukma Priya vs Mr. A.C.Maheshwara Raj on 13 February, 2024
KABC0A0037042018 KABCOA0035212015
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri. P. G Chaluva Murthy,
M. A. L.L.M
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 13th day of February 2024
O.S.No.1019/2015
&
O.S.No.26487/2018
Plaintiff: Mrs. R. Rukma Priya,
Aged about 54 years,
W/o Mr. K. Rajashekar,
Residing at No.B-313,
VRR Apartments,
Byreshwara Layout,
Hennur Bande,
Bangalore-560 043.
Represented by her
P.A.Holder,
Mr. K. Rajashekar,
Aged about 60 years,
S/o Late P.N. Kodhandapani,
2 O.S.No.26487/2018
C/w O.S.No.1019/2015
Residing at No.B-313,
VRR Apartments,
Byreshwara Layout,
Hennur Bande,
Bangalore-560 043.
(By M/s JAYPEE Associates for Plaintiff)
V/s
Defendants: 1. Mr. A.C. Maheshwara Raj,
Aged about 80 years,
S/o Late Chennakeshawa,
Since deceased on 27.4.2021
by his LRs.
2. Mr. M. Sundar Velu,
Aged about 51 years,
S/o Mr. A.C. Maheshwara Raj,
Residing at No.1503/1 (1387)
Second Floor, 3rd Cross,
Keerthi Layout, Kamanahalli,
Bangalore-560 084.
3. Mrs. Manjula. S,
Aged about 47 years,
W/o Mr. M. Sundar Velu,
Residing at No.1503/1 (1387)
Second Floor, 3rd Cross,
Keerthi Layout, Kamanahalli,
Bangalore-560 084.
(By Sri. Gopala Krishna for D.1 & 2)
3 O.S.No.26487/2018
C/w O.S.No.1019/2015
Date of Institution of the suit 31.1.2015
27.11.2018
Nature of the (Suit or pro-note, Injunction Suit
suit for declaration and &
possession, suit for injunction, Declaration &
etc.) Possession
Date of the commencement of 11.4.2018
recording of the Evidence. &
31.3.2021
Date on which the Judgment
was pronounced. 13.2.2024
Total duration Year/s Month/s Day/s
O.S.No.1019/2015 09 00 12
OS.No.26487/2018 05 02 16
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
COMMON JUDGMENT
The above suits are filed by the very same
Plaintiff one for the relief of declaration and
consequential relief of possession and for other reliefs
in respect of immovable property.
4 O.S.No.26487/2018
C/w O.S.No.1019/2015
2. The connected suit is for the relief of bare
injunction against the very same Defendants in
respect of the very same Schedule Property.
3. Briefly stated the case of the Plaintiff is as
follows:
(i) The 1st Defendant is her father and 2nd
Defendant is her brother, the 3 rd Defendant is the
sister-in-law of the Plaintiff and wife of 2 nd Defendant.
The Plaintiff and 2nd Defendant are the daughter and
son of the 1st Defendant and Mrs. Indira. The
residential property bearing Site No.1940/C (carved
out of Survey No.52/2) of Kamanahalli
(Kacharakanahalli), Kasaba Hobli, Bangalore North
Taluk, measuring 3720 square feet was owned and
possessed by Col. Vijay Kumar, who had executed
General Power of Attorney. In favour of the 1 st
Defendant on 16.6.1993. On the strength of the Power
of Attorney of Col. Vijay Kumar, the 1 st Defendant
executed Sale Deed in favour of the Defendant No.3 in
respect of the ground floor portion of the property
bearing No.1940/C under the registered Sale Deed
dtd: 9.7.2004. On the same day, the 1st Defendant as
a Power of Attorney holder of Col. Vijay Kumar
executed Sale Deed dtd: 9.7.2004 in favour of the
5 O.S.No.26487/2018
C/w O.S.No.1019/2015
Plaintiff in respect of first floor portion and the terrace
area over the property of Defendant No.3. Pursuant to
Sale Deed the Plaintiff was put in possession of the
first floor Property. After purchase of the property
which was consisting of a portion of the built up area
and the open terrace, the Plaintiff along with her
husband renovated and constructed the additional
first floor in the open terrace and a portion of the
second floor on the property bearing No.1940/C
(carved out of Survey No.52/2) of Kamanahalli
(Kacharakanahalli), Kasaba Hobli, Bangalore North
Taluk at their cost.
(ii) The further case of the Plaintiff is that the
name of the Plaintiff has been recorded as khathedar
in the revenue records of the BBMP. The property sold
in favour of the Plaintiff was entire first floor with the
terrace and during the said period the relationship
between the Plaintiff and the Defendants was very
cordial. The 1st Defendant as a Power of Attorney
holder had not reserved any rights with regard to the
terrace of the first floor and that entire right, title and
interest in the terrace of the first floor had vested with
the Plaintiff. At the time of execution of Sale Deed in
favour of the Plaintiff, the first floor was covered only
6 O.S.No.26487/2018
C/w O.S.No.1019/2015
partly with built up area and subsequently after
acquiring the right, title and interest, the Plaintiff
constructed the remaining portion of the first floor and
a portion of the second floor.
(iii) It is further pleaded that the 1 st Defendant
along with his wife, the 2nd Defendant who is the son
and Defendant No.3 is the daughter-in-law were
residing in the ground floor and after Plaintiff
constructed a portion of the second floor which is the
Suit Schedule Property, the Plaintiff had permitted the
1st Defendant, his wife Indira to occupy the Schedule
Property and accordingly her parents were in
possession of the second floor of the building. The
Defendant No.2 and 3 along with their children were
residing in the ground floor of the property. The
Plaintiff along with her family was residing in the first
floor of the property bearing No.1940/C. After the
mother of the Plaintiff Smt. Indira died on 31.12.2013,
the father of the Plaintiff, the 1 st Defendant shifted to
ground floor and stayed with the 2 nd Defendant and
his family members. The Plaintiff took back the
possession of the second floor during January 2014
and the Schedule Property was kept under lock and
key by the Plaintiff. After the death of Indira the
7 O.S.No.26487/2018
C/w O.S.No.1019/2015
relationship between the Plaintiff and the Defendants
was not cordial. The Plaintiff came to know that the
Defendants had without the knowledge and consent
of the family had sold the property bearing Plot No.1,
Assessment No.88, carved out of Survey No.88, of
Kayamgutta Village, Bydarahalli Civil Station,
Bangalore, also known as 4th Cross, Chinnappa
Garden, K.G. Byadarahalli, Civil Station, Bangalore,
which belonged to Smt. Indira. Immediately the
Plaintiff initiated the suit in O.S.No.6801/2014 for
partition against the Defendant No.1 and 2 and other
perspective purchasers, which is pending
consideration.
(iv) After institution of the suit by the Plaintiff for
partition, the attitude of the Defendants become
hostile and therefore, the Plaintiff and her family
members vacated the first floor portion of the property
and presently staying in the address mentioned in the
cause title. The 1st Defendant was under the control of
the 2nd Defendant. The Plaintiff has let out the portion
of the first floor of the property to the tenants and the
Defendants have been unnecessarily interfering with
the possession of the Plaintiff and were obstructing
the civic amenities and therefore, the Plaintiff has filed
8 O.S.No.26487/2018
C/w O.S.No.1019/2015
the suit for injunction and mandatory injunction
against the Defendants in O.S.No.1019/2015 (which
is the connected matter).
(v) The further grievance of the Plaintiff is that
during December 2014, the Defendants started
constructing illegally a stair case from the ground floor
to the second floor and took illegal possession of the
Schedule Property since December 2014.
Subsequently the Plaintiff came to know that the
Defendant No.1 acting as the Power of Attorney holder
of Col. Vijay Kumar has created Sale Deed dtd:
6.6.2014 in favour of the 2nd Defendant in respect of
the Schedule Property. The 1st Defendant had no
manner of right or subsisting interest to execute Sale
Deed in favour of the 2nd Defendant in respect of the
first floor portion and terrace area and the second
floor premises. The Plaintiff had acquired absolute
right over the first floor and the terrace area of the first
floor under the Sale Deed. The Plaintiff had permitted
the 1st Defendant and his wife Mrs. Indira to occupy
the Schedule Property and they were only in
permissive possession of the Schedule Property. Under
the circumstances, the Plaintiff approached this Court
seeking declaration, declaring her title to the Suit
9 O.S.No.26487/2018
C/w O.S.No.1019/2015
Schedule Property and also sought for declaration
declaring the Sale Deed dtd: 6.6.2014 executed in
favour of the 2nd Defendant as null and void and for
other consequential reliefs.
4. Pursuant to summons, the Defendants entered
appearance through their counsel and filed their
detailed written statement.
(i) The Defendants contended that the suit of the
Plaintiff is not maintainable either in law or on facts.
The Defendants while admitting the relationship of the
parties disputed the other averments made by the
Plaintiff. According to Defendants, the 1st Defendant
being the absolute owner of the property, out of love
and affection towards his children executed gift deed
in favour of Plaintiff without receiving any monetary
benefits and the Plaintiff with active collusion with her
husband with an intention to cheat and defraud the
other members of the family played fraud and
misrepresentation and obtained Sale Deed in the
place of gift deed by making false assurance and
taking advantage of innocence of the 1 st Defendant.
The 1st Defendant was a sole and absolute owner and
in possession and enjoyment of the property and out
10 O.S.No.26487/2018
C/w O.S.No.1019/2015
of his self-secured funds had put up construction of
ground, first and second floors and he is paying
property tax to the concerned authorities. The
Defendant is residing in the second floor of the said
building. The 1st Defendant due to is old age and ill-
health in order to save the harmony in the family, out
of his free will executed a separate and independent
Sale Deeds in favour of his children and accordingly
he executed the Sale Deeds. The Plaintiff has no
manner of right, title and interest over any portion of
the property as claimed by her in the plaint, except the
first floor of the property. She had no right to put up
any further construction in the property. There is
separate entrance to reach the first floor of the
premises belonging to the Plaintiff and similarly the
second floor premises has been sold in favour of the
2nd Defendant which is having separate entrance to
reach his house premises.
(ii) In so far as the property of their mother is
concerned, it is the contention of the Defendants that
prior to sale of the said property Smt. Indira gave an
option to the Plaintiff and other Defendants about her
intention to alienate the property and on failure to
purchase the property said Indira transacted the same
11 O.S.No.26487/2018
C/w O.S.No.1019/2015
in favour of others in order to meet her legal and
family necessities. The Plaintiff was aware of the
same. Only with an intention to harass the
Defendants and the purchasers of the property, the
Plaintiff had filed a suit by suppressing the real and
material facts. The suit of the Plaintiff is barred by
law of limitation. The suit is not properly valued and
court fee paid by the Plaintiff is insufficient. The sum
and substance of the defense taken by the Defendants
is that the right, title and interest of the first floor is
only given to the Plaintiff and not the terrace or the
second floor of the property and therefore the Plaintiff
cannot claim right over the terrace of the first floor and
the second floor was constructed by the Defendants
and not by the Plaintiff. Under the circumstances, the
Defendants have sought for dismissal of the suit with
exemplary costs.
5. Based on the pleadings of the parties, my
leaned predecessor has framed the following issues:
1. Whether the Plaintiff proves
that she has purchased the 1st
floor and the open terrace from
the Defendant No.1 by virtue of
registered Sale Deed dt.
09.07.2004 and she is in lawful
12 O.S.No.26487/2018
C/w O.S.No.1019/2015
possession of the Suit Schedule
Property, as contended by her
in para No.7 of the suit plaint?
2. Whether the Plaintiff proves
that she and her husband
renovated and constructed the
additional 1st floor in the open
terrace and the portion of the
2nd floor on the property
bearing No.1940/C of
Kamanahalli, as contended by
her in para No.7 of the suit
plaint?
3. Whether the Plaintiff proves
that she had permitted the 1st
Defendant and his wife Mrs.
Indira to occupy the Schedule
Property and put them in
possession as contended by her
in para No.11 of the suit
plaint?
4. Whether the Plaintiff proves
that she has taken back
possession of the Schedule
Property during January 2014
and kept the same under lock
and key as contended by her in
para No.12 of the suit palint?
13 O.S.No.26487/2018
C/w O.S.No.1019/2015
5. Whether the Plaintiff proves
that the Defendants have
illegally started constructing a
staircase from the ground floor
to the 2nd floor during December
2014 and took illegal
possession of the Schedule
Property, by dispossessing by
her, as contended in para
Nos.16 and 19 of the suit
plaint?
6. Whether the Defendants prove
that suit of the Plaintiff is bad
for misjoinder and nonjoinder
of necessary parties, as
contended by them in para No.3
of their written statement?
7. Whether the Plaintiff has
properly valued the suit plaint
and has paid court fee as per
law?
8. Whether the Plaintiff is entitle
for relief of declaration of
ownership over the Suit
Schedule Property as sought by
her in the suit plaint?
9. Whether the Plaintiff is entitled
for the relief of recovery of
14 O.S.No.26487/2018
C/w O.S.No.1019/2015
possession of the Schedule
Property as sought by her in the
suit plaint?
10. Whether Plaintiff is entitled
for the relief of declaration, to
get declare the Sale Deed dt.
06.06.2014 as null and void
and for cancellation of the
same?
11. Whether the Plaintiff is
entitled for the relief of
permanent injunction?
12. Whether the Plaintiff is
entitled for the relief of mesne
profits, as sought for by her in
the suit plaint?
13. What order or decree?
6. The pleadings in the connected suit is also on
the aforesaid lines. In the said suit, which was filed
earlier to the above suit also the Plaintiff pleaded
regarding mode of acquisition of the property and her
possession over the first floor and second floor of the
property and the alleged interference by the
Defendants with the possession and enjoyment of the
Schedule Property by the Plaintiff and her tenants
15 O.S.No.26487/2018
C/w O.S.No.1019/2015
etc., and sought for permanent injunction in respect of
the first and second floor of the property bearing
Corporation No.1940/C (cared out of 52/2) situated at
Keerthi Layout, Kacharakanahalli, Bangalore.
7. The very same defense was taken by the
Defendants in the said suit also. In fact, on perusal of
the written statement, the Defendants there also
contended that the Plaintiff had no right over the
terrace of the first and second floor portion of the
property and sought for dismissal of the suit.
8. Based on the pleadings of the parties, my
leaned predecessor has framed the following issues:
1. Whether Plaintiff is entitle for
the permanent injunction as
prayed for?
2. Whether Plaintiff is entitle for
the relief of mandatory
injunction as prayed for?
3. Whether Plaintiff is entitle for
the relief claimed?
4. What decree or order?
9. The General Power of Attorney holder of the
Plaintiff got himself examined as PW.1 and got
16 O.S.No.26487/2018
C/w O.S.No.1019/2015
marked Ex.P.1 to Ex.P.53 and closed his side. The
Defendant No.2 got examined himself as DW.1 and got
marked Ex.D.1 to Ex.D.15 documents and closed his
side.
10. In O.S.No.1019/2015 Ex.P.1 to Ex.P.12
marked by the Plaintiff and Ex.D.1 to Ex.D.13 are
marked from the Defendant's side.
11. Heard the Counsel for both parties. The
Learned Counsel for both the parties also filed written
arguments. Perused the same.
12. On appreciation of the evidence and
documents on record, my findings on the above issues
are as under:
OS.No.26487/2018
Issue No.1: Partly in the Affirmative.
Issue No.2: Partly 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 Negative.
Issue No.8: In the Negative.
Issue No.9: In the Negative.
Issue No.10: In the Negative.
Issue No.11: In the Negative.
Issue No.12: In the Negative.
17 O.S.No.26487/2018
C/w O.S.No.1019/2015
OS.No.1019/2015
Issue No.1: In the Negative.
Issue No.2: In the Negative.
Issue No.3: In the Negative.
Issue No.13 in OS.No.26487/2018
& Issue No.4 in OS.No.1019/2015
: As per final order for
the following:
REASONS
13. Issue No.1 to 5, 8 to 10 in
O.S.No.26487/2018 and Issue No.1 & 2 in
O.S.No.1019/2015:-
Since, all these issues are revolving around the
second floor terrace of the building, in order to avoid
repetition of facts, all the issues have been taken up
together for consideration.
14. The Learned Counsel for the Plaintiff
submitted that the Plaintiff is the absolute owner of
the Schedule Property on the first floor having
purchased the same from her father under the
registered Sale Deed dtd: 9.7.2004. According to
Plaintiff the first floor was consisting of three square
RCC building and the remaining open terrace was
also sold in her favour by her father under the Sale
Deed Dtd: 9.7.2004 and she is in lawful possession
18 O.S.No.26487/2018
C/w O.S.No.1019/2015
and enjoyment of the first floor Property. The
Learned Counsel submitted that subsequently
Rectification Deed was executed by her father on
6.4.2006 wherein the word 'passage' measuring 30 X
10 feet was incorporated and the extent of open space
on the terrace of the ground floor of Defendant No.3
property was mentioned at 1600 square feet and
thereby the Plaintiff is the absolute owner of the first
floor constructed area plus terrace over the property of
the 1st Defendant under the Sale Deed dtd: 9.7.2004
which is produced and marked at Ex.P.3.
15. The Learned Counsel for the Defendants are
not disputing the right of the Plaintiff over the built up
area on the first floor and the terrace floor available
on the property of the 3rd Defendant over the ground
floor. Even the document at Ex.P.3 Sale Deed and the
Rectification Deed at Ex.P.4 dtd: 6.4.2006 indicate
that the Plaintiff purchased the house property
bearing No.1940/C (carved out of Survey No.52/2) of
Kamanahalli (Kacharakanahalli), Kasaba Hobli,
Bangalore North Taluk, only measuring East to West
30 feet and North to South 10 feet (Ground Floor
Passage) with 3 squares RCC building (First Floor)
with Jungle Wood and Red Oxide Flooring with entire
19 O.S.No.26487/2018
C/w O.S.No.1019/2015
open spare 1600 square feet terrace of Smt. Manjula's
house property. Smt. Manjula is none other than the
3rd Defendant in this case, in whose favour the ground
floor was sold by the father of the Plaintiff under the
Sale Deed at Ex.P.2. The ground floor portion was
consisting of 5 squares RCC building and since the
first floor was consisting of only 3 squares building
the remaining terrace right was also given to the
Plaintiff. In view of Ex.P.3 and Ex.P.4, the Plaintiff has
come the absolute owner of the first floor property
along with the terrace on the ground floor property of
the Defendant No.3. Therefore, the Defendants are not
disputing the right, title or interest of the Plaintiff over
the first floor of the property bearing No.1940/C out
of Property No.52/2, situated at Kacharakanahalli,
Kasaba Hobli, Bangalore North Taluk. Even in the
evidence before the Court, the Defendants are not
disputing the right, ownership and possession of the
Plaintiff over the first floor of the property including
the terrace on the ground floor of Defendant No.3
property. Therefore, much discussion is not required in
so far as the above issue is concerned. Accordingly,
Issue No.1 is answered in the Affirmative.
20 O.S.No.26487/2018
C/w O.S.No.1019/2015
16. The Learned Counsel for the Plaintiff time
and again argued that after alienation of the first floor
with terrace to the Plaintiff under the registered Sale
Deed at Ex.P.3, the 1st Defendant did not retain the
rights over the terrace of the first floor and the Plaintiff
has become the absolute owner of the terrace of the
first floor and therefore, she has put up construction
over the same and permitted her parents to occupy the
said property on the second floor. Later, the Plaintiff
took back the possession of the Schedule Property
during January 2014 and she kept the same under
lock and key. According to Plaintiff, the Defendants
who have no manner of right over the second floor
property illegally started constructing staircase from
the ground floor on the strength of the Sale Deed said
to have been executed by her father in favour of the
2nd Defendant on 6.6.2014. The Learned Counsel
contended that, since the father of the Plaintiff and
Defendant No.2 did not retain any right over the
second floor terrace, he had no right to execute any
Sale Deed in favour of the 2nd Defendant bequeathing
the terrace of the first floor. According to Learned
Counsel, the second floor was constructed by the
Plaintiff out of her own amount and allowed her
21 O.S.No.26487/2018
C/w O.S.No.1019/2015
parents to occupy the same out of love and affection.
Therefore, according to Plaintiff, the Sale Deed dtd:
6.6.2014 executed by the 1st Defendant in favour of
the 2nd Defendant is null and void and not binding on
the Plaintiff. The Learned Counsel while referring to
Section 17 of the Registration Act, Section 91 of the
Indian Evidence Act and Section 54 of the Transfer of
Property Act contended that the entire terrace area of
the first floor was given to the Plaintiff and therefore,
the Plaintiff has become the absolute owner of the
terrace of the first floor. The Learned Counsel while
referring to the evidence of DW.1 in the cross-
examination submitted that there is no whisper in the
reply notice regarding Ex.P.37 the Sale Deed of the 2 nd
Defendant and therefore, it is created document in
order to grab the property of the Plaintiff. Only after
the death of mother of the Plaintiff, the 2 nd Defendant
has taken electrical connection after 2014. The
Plaintiff is having better title over the terrace of the
first floor. Therefore, the Learned Counsel for the
Plaintiff sought for decree declaring that the Plaintiff is
the absolute owner of the Suit Schedule Property. The
Suit Schedule Property according to Plaintiff is the
entire second floor constructed on the property bearing
22 O.S.No.26487/2018
C/w O.S.No.1019/2015
No.1940/C (carved out of Survey No.52/2) of
Kamanahalli (Kacharakanahalli), Kasaba Hobli,
Bangalore North Taluk, measuring 700 square feet
built up area and 682 square feet of land out of
2042.50 square feet with water, light, sanitation and
including all rights, privileges and appurtenances
thereto. The Learned Counsel for the Plaintiff relied on
the ruling reported in AIR 1954 Ajmer 63 (2)
(Makhanlal & Others V/s Lala Lakshmi Chand &
Another) and in another judgment of Hon'ble
High Court of Delhi in RFA (OS) No.75/2014 (Asha
Johri V/s Neerja Rajput & Anr.) and the
Judgment of Supreme Court in AIR 2020 SC
1470 (Sajan Sethi V/s Rajan Sethi).
17. The Learned Counsel for the Plaintiff also
filed written arguments.
18. Per contra, the Learned Counsel for the
Defendants contended that the father of Plaintiff only
alienated the first floor constructed area plus terrace
over the property of the Defendant No.3 and not the
terrace of the first floor. There is no reference in the
Sale Deed of the Plaintiff regarding alienation of the
terrace of the first floor in favour of the Plaintiff.
23 O.S.No.26487/2018
C/w O.S.No.1019/2015
Therefore, it is implied that the father of the Plaintiff
and 2nd Defendant retained rights over the terrace of
the first floor and rightly as the absolute owner
executed the Sale Deed in favour of the 2nd Defendant
under Ex.P.37 alienating the terrace of the first floor
along with the constructed area in the second floor.
Therefore, the Plaintiff cannot question the Sale Deed
executed by her father in favour of the 2 nd Defendant.
No right accrued to the Plaintiff over the terrace of the
first floor on the strength of Ex.P.3 Sale Deed.
Therefore, the Learned Counsel for the Defendants
sought for dismissal of the suit.
19. Bearing in mind, the oral contentions, let me
appreciate the evidence and documents on record.
20. At the outset, it is made clear that the
relationship of the parties is not in dispute. The
Plaintiff is the daughter of the deceased 1 st Defendant
and 2nd Defendant is the son and 3rd Defendant is the
daughter-in-law of the 1st Defendant. It is also
admitted fact that the property bearing No.1940/C
(carved out of Survey No.52/2) of Kamanahalli
(Kacharakanahalli), Kasaba Hobli, Bangalore North
Taluk, measurin 3720 square feet was owned and
24 O.S.No.26487/2018
C/w O.S.No.1019/2015
possessed by one Col. Vijay Kumar who has executed
General Power of Attorney in favour of the 1 st
Defendant on 16.6.1993 and on the strength of the
same the 1st Defendant sold the ground floor
constructed property in favour of the 3rd Defendant
under the registered Sale Deed. Dtd: 9.7.2004 under
Ex.P.2. On the same day, a portion of the property
measuring 30' X 10' feet ground floor passage and 3
squares RCC building in the first floor with entire open
terrace above the Manjula's house was sold in favour
of the Plaintiff herein. Ex.P.4 is the Rectification Deed
dtd: 6.4.2006 which is also not disputed. In the
Rectification Deed as aforesaid the word 'passage'
was incorporated in the schedule in addition to
mentioning the extent of open space on the terrace of
Defendant No.3 property at 1600 square feet.
21. Now, the entire case revolves around the
second floor i.e., the terrace over the first floor. The
Plaintiff claims that she is the absolute owner of the
terrace of the first floor and therefore, she constructed
the building over the same and permitted her parents
to occupy the same. Whereas the contention of the
Defendants is that the terrace of the first floor is not
at all sold in favour of the Plaintiff and it was
25 O.S.No.26487/2018
C/w O.S.No.1019/2015
impliedly retained by the 1st Defendant and it is the 1st
Defendant who constructed the residential premises
on the second floor and sold the same in favour of the
2nd Defendant under Ex.P.37. Therefore, the Plaintiff
cannot claim right over the terrace of the first floor.
Now the Court has to decide as to the terrace rights of
the respective parties.
22. The General Power of Attorney holder of the
Plaintiff filed affidavit in lieu of oral evidence and
reiterated the plaint averments regarding Plaintiff
purchasing the first floor with open terrace on the first
floor from the deceased 1st Defendant under
registered Sale Deed dtd: 9.7.2004 and regarding her
title and possession over the terrace of the first floor
and also questioned the Sale Deed executed by the
Defendant No.1 in favour of the 2nd Defendant over the
terrace of the first floor and contended that the 1 st
Defendant had no absolute right over the terrace of the
first floor to alienate the same in favour of the 2 nd
Defendant. According to Plaintiff the Defendants are in
unauthorized possession of the second floor of the
Suit Schedule Property illegally and hence sought for
possession of the Schedule Property from the
Defendants. The Plaintiff relied on 53 documents.
26 O.S.No.26487/2018
C/w O.S.No.1019/2015
Ex.P.1 is the Power of Attorney executed by the
Plaintiff in favour of the PW.1 which is not in dispute.
Ex.P.2 is the Certified copy of of the Sale Deed. Of the
3rd Defendant who is the daughter-in-law of the 1 st
Defendant under which the 1st Defendant sold ground
floor portion of the Plaintiff in favour of the Defendant
No.3. Ex.P.3 is the Certified copy of Sale Deed. Of the
Plaintiff under which the first floor building consisting
of 3 square RCC building and remaining terrace area
over the property of the 3rd Defendant was sold in
favour of the Plaintiff. Ex.P.4 is the Rectification Deed
under which clarification was made regarding 30' X
10' feet passage being given to the Plaintiff and 1600
square feet terrace over the property of the 3 rd
Defendant. Those two documents are also not in
dispute. Ex.P.5 and Ex.P.6 are couple of plans
prepared by the Plaintiff herself which are the self-
serving documents. Ex.P.7 is the Form-B property
register extract which clearly indicate that the Plaintiff
is in possession of the 1900 square feet which is the
first floor plus 30' X 10' feet passage. Ex.P.8 is also
the Tax Paid Receipt. Ex.P.9 to Ex.P.33 are the BWSSB
Bills and the payments made by the Plaintiff and also
Electricity Bills. None of the documents indicate that
27 O.S.No.26487/2018
C/w O.S.No.1019/2015
the amount was paid towards the second floor of the
building. Admittedly, the Plaintiff is in possession of
the first floor and all those documents might have
relating to the first floor of the building. Ex.P.38 to
Ex.P.48 are the xerox copies of the Photographs which
are produced to establish the lock and key of the gates
leading to the first floor and second floor. Ex.P.34 is
the Complaint by the Plaintiff on 13.2.2014 to the
Assistant Executive Engineer, K.K. Halli, Bangalore,
alleging illegal construction and damage to the
building. The said complaint is not referred to any
person. No allegation is made against the Defendants
in the said complaint. Only request made in the said
complaint is to take legal action to stop the illegal
construction. Ex.P.35 is one more Complaint to the
Police on 19.1.2014 against the Defendants. Ex.P.36 is
the copy of the Plaint in connected suit in
O.S.No.1019/2015 filed by the very same Plaintiff
against the Defendants for the relief of perpetual
injunction in respect of the first and second floor
property.
23. Ex.P.37 is the material document, which is
not challenged by the Plaintiff, under which the
deceased 1st Defendant sold the second floor building
28 O.S.No.26487/2018
C/w O.S.No.1019/2015
in favour of the 2nd Defendant. Ex.P.49 is the Legal
Notice dtd: 28.7.2014 to the Defendants and others by
the Plaintiff through her Counsel in respect of property
bearing Sy.No.88 of Kayamgutta, Byadarahalli, Civil
Station, Bagalore, which is not the subject matter of
the above suit. Ex.P.50 is the Reply Notice by the
Defendants dtd: 29.12.2014 to the notice issued by
the Plaintiff on 7.11.2014. The Plaintiff had not
produced the Notice dtd: 7.11.2014 and only Reply
Notice is available at Ex.P.50. Ex.P.51 and Ex.P.52 are
the Deposition of 2nd Defendant in O.S.No.1019/2015.
Ex.P.53 is the Sale Deed in respect of Sy.No.88
situated at Kayamgutta, Byadarahalli, Civil Station,
Bagalore, said to have been executed by one A.P.
Seshasayanam S/o A.N. Punnaya Kotti Naidu in
favour of Smt. Indira the mother of the Plaintiff and 2 nd
Defendant. The said property as aforesaid is not the
subject matter of the above suit.
24. PW.1 was cross-examined by the Learned
Counsel for the Defendant at length. Now, the
question before this Court is - Whether the Plaintiff
has got absolute right over the terrace of the first floor
on the strength of the Sale Deed at Ex.P.3 and
Rectification Deed at Ex.P.4. The Plaintiff contended
29 O.S.No.26487/2018
C/w O.S.No.1019/2015
that after alienation of the first floor in favour of the
Plaintiff, the 1st Defendant had no right to alienate the
terrace of the first floor in favour of the 2nd Defendant.
Therefore, the documentary evidence is material in the
above case in order to appreciate the contention of
both the parties. Therefore, the schedule of the
property sold in favour of the Plaintiff is very
material. The schedule at Ex.P.3 reads thus:
SCHEDULE
All that piece and parcel of house property bearing
No.1940/C Out of Property No.52/2, situated at
Kammanahalli, hamlet of Kacharakanahalli, Kasaba
Hobli, Bangalore North Taluk, Bangalore-560 082,
measuring East to West 30 Feet and North to South 10
Feet (Ground) along with 3 squares RCC building (First
Floor) with Jungle Wood and Red Oxide Flooring with
entire open terrace of Smt. Manjula's house and bounded
on as follows:
East by : Vendor's remaining Property.
West by : Road.
North by : Private Property.
South by : Mr. and Mrs. Jalaudeen's property.
25. From the schedule, it could be seen that the
Plaintiff has purchased 3 square RCC Building in the
first floor with Jungle Wood and Red Oxide Flooring
30 O.S.No.26487/2018
C/w O.S.No.1019/2015
with entire open terrace of Smt. Manjula's house in
property bearing No.1940/C out of Property No.52/2.
Even in the Rectification Deed the word 'Passage' is
incorporated in the schedule measuring 30' X 10' feet
and the total extent of terrace over the property of the
3rd Defendant is added as 1600 square feet. Except
those two changes there are no changes in the
Rectification Deed. The schedule of the Rectification
Deed at Ex.P.4 reads thus:
SCHEDULE
All that piece and parcel of house property bearing
No.1940/C Out of Property No.52/2, situated at
Kacharakanahalli, Kasaba Hobli, Bangalore North Taluk,
Bangalore-560 082, measuring East to West 30-00 Feet
and North to South 10-00 Feet (Ground Floor Passage)
with 3 squares RCC building (First Floor) with Jungle
Wood and Red Oxide Flooring with entire open Space One
Thousand Six Hundred Sq.Ft., terrace of Smt. Manjula's
house property and bounded on:
East by : Vendor's remaining Property.
West by : Road.
North by : Private Property.
South by : Mr. and Mrs. Jalaudeen's property.
31 O.S.No.26487/2018
C/w O.S.No.1019/2015
26. Now, under Ex.P.37 the deceased 1st Defendant
during his lifetime sold the first floor terrace of the
property along with constructed building. The schedule at
Ex.P.37 reads thus:
SCHEDULE PROPERTY
All that piece and parcel of house property bearing
No.1940/C Out of Property No.52/2, situated at
Kammanahalli, hamlet of Kacharakanahalli, Kasaba
Hobli, Bangalore North Taluk, Bangalore-560 082,
measuring East to West towards northern side 50 feet,
southern side 36 feet and north to south towards eastern
side 45 feet and western side 50 feet in all 2042.5 square
feet out of the same, 1/3rd undivided share in sital area
i.e., 682 square feet and built up area measuring 704
square feet in the second floor constructed in RCC building
mud with bricks of cement, red oxide building, jungle wood
used for windows and doors together with civic amenities,
right to use stair case, passage and other common area of
the building and bounded on the:
East by : Remaining portion of property.
West by : Road.
North by : Private Property.
South by : Property of Jalaudeen.
27. From the schedule it could be seen that the
2nd Defendant was given 1/3rd undivided share in
32 O.S.No.26487/2018
C/w O.S.No.1019/2015
sital area i.e., 682 square feet and built up area i.e.,
704 square feet in the second floor constructed in RCC
building mud with bricks of cement, red oxide
building, jungle wood used for windows and door
together with civic amenities, right to use stair case,
passage and other common area of the building. The
entire first floor terrace measuring 2042.5 square feet
was given to the 2nd Defendant which includes the
built up area of 704 square feet.
28. The contention of the Plaintiff is that the 1 st
Defendant had no right to alienate the terrace of the
first floor in favour fo the 2nd Defendant.
29. In the cross-examination at page-15 para-1,
the PW.1 in unambiguous terms admitted that there is
no mention in the Sale Deed or Rectification Deed that
the passage measuring 30' X 10' feet exclusively
belongs to the Plaintiff. Similarly at page-16 para-2
there is a question as follows:
Q. Is there any reference in my Sale Deed
regarding my right in the terrace of the first floor?
A. At the time of Sale Deed no terrace was
existing, myself constructed the first floor.
33 O.S.No.26487/2018
C/w O.S.No.1019/2015
30. This answer could be compared with the
schedule of the Plaintiff referred to above. In the Sale
Deed as aforesaid there was built up area of 3
squares RCC building over the property of the 3 rd
Defendant and the terrace over the above ground floor
was given to the Plaintiff along with 3 squares RCC
building. Meaning thereby, there was already a
building over the ground floor terrace to an extent of 3
squares. Remaining extent in the above area, the
Plaintiff claims to have constructed the building. All
these things were taken place during the lifetime of
the 1st Defendant. In fact the 1 st Defendant died during
the pendency of the suit. The Sale Deed of the 2nd
Defendant was executed in the year 2014, whereas
the 1st Defendant died in the year 2021. Therefore
during the lifetime of the 1st Defendant itself, he had
alienated the first floor terrace i.e., second floor with
built up area in favour of the 2nd Defendant.
31. In the further cross-examination the witness
admitted that the Plaintiff was only permitted to
construct the building on the building of the 3 rd
Defendant. However, the witness stated that Ex.P.37
the Sale Deed of the 2nd Defendant is an illegal
document. In so far as the document produced by the
34 O.S.No.26487/2018
C/w O.S.No.1019/2015
Plaintiff at Ex.P.9 to Ex.P.30 Electrical Bills are
concerned, it is suggested that they are only related to
the first floor. However, the witness denied the same.
Though the witness stated that they are related to the
first and second floor, none of the documents indicate
the payment of electricity and water bills in respect of
both the floors by the Plaintiff. The witness admitted
that at the first floor she has installed the gate and
locked it as per Ex.P.38 to Ex.P.48 photographs.
Therefore, it is suggested that since the Plaintiff locked
the gate, the 2nd Defendant has erected the temporary
staircase for the second floor. In the further cross-
examination at page-19 the witness admitted that
there is no reference to the second floor in the tax paid
receipts. Time and again the PW.1 has stated that the
2nd Defendant is in illegal occupation of the second
floor. The remaining cross-examination is regarding
construction of the second floor which will be
discussed little later.
32. Coming to the evidence of DW.1, naturally he
reiterated the written statement averments stating
that he purchased the second floor from his father on
6.6.2014 under the registered Sale Deed and he is in
possession of the Schedule Property. He relied on 15
35 O.S.No.26487/2018
C/w O.S.No.1019/2015
documents. Ex.D.1 is the Power of Attorney which is
not in dispute. On the basis of this Power of Attorney
the 1st Defendant sold the property in favour of the
Defendant No.2 & 3. Ex.D.2 is the Sale Deed of the 1 st
Defendant. Ex.P.37 and Ex.D.2 are one and the same.
Ex.D.3 is the Form-B property register extract, which
indicate that the name of the 2nd Defendant is reflected
in respect of built up area measuring 704 square feet,
which reflected under the Sale Deed of the 2 nd
Defendant. The site dimension is also reflected in
Col.No.5. Ex.D.4 is the Tax Paid Receipt by the 2 nd
Defendant. Ex.D.5 is the Encumbrance Certificate,
which indicate the alienation of the Suit Schedule
Property in favour of the 2nd Defendant. Ex.D.6 is also
Encumbrance Certificate, which indicate the transfer
of ground floor in favour of the 2nd Defendant. Ex.D.7
is the Notice dtd: 28.7.2014 in respect of property
bearing Sy.No.88 which belongs to the mother of the
Plaintiff. Ex.D.8 is the Reply Notice of the Defendants
dtd: 29.12.2014. Both the above notices are produced
by the Plaintiff herself. Ex.D.8 and Ex.D.9 are the
Postal Receipt and Postal Acknowledgment. Ex.D.11 to
Ex.D.14 are the Electricity and Water Bills said to
have been paid by the 1st Defendant. Ex.D.15 is the
36 O.S.No.26487/2018
C/w O.S.No.1019/2015
Death Certificate of the 1st Defendant who died on
27.4.2021.
33. DW.1 was also cross-examined at length by
the Learned Counsel for the Plaintiff. In so far as the
right of the 1st Defendant to alienate the Suit Schedule
Property in favour of the 2nd Defendant is concerned,
time and again it is suggested to DW.1 that the 1st
Defendant has not reserved his right over the vacant
space of the terrace of the first floor to alienate in
favour of the 2nd Defendant. However, the witness
denied the suggestions. The first paragraph of the
cross-examination is regarding execution of Ex.D.2 to
Ex.D.4 in favour of the Plaintiff and the 3rd Defendant.
However the DW.1 has pleaded ignorance regarding
his father reserving his right over the open space of
the terrace of the first floor. Of course, the witness
admitted that there is no reference for having reserved
his rights over the open space of the terrace of the
ground floor in Ex.P.2 Sale Deed of his wife. The fact
admitted by the DW.1 is that the property measuring
30' X 10' feet on the northern side of the building in
the ground floor was given to the Plaintiff under
Ex.P.3. However, the witness voluntarily stated that its
a common passage. The witness also admitted the
37 O.S.No.26487/2018
C/w O.S.No.1019/2015
execution of Rectification Deed in favour of the
Plaintiff. The fact admitted by DW.1 is that the ground
floor vacant space in the ground floor was given to the
Plaintiff under Rectification Deed Ex.P.4. The ground
floor terrace is not in dispute. Admittedly 3 squares
RCC building with vacant terrace area over the ground
floor was given to the Plaintiff. The dispute is only in
respect of the 2nd floor building.
34. At page-11 para-5 it is suggested to the
witness that his father had no right over the first floor
terrace. The said suggestion is denied by the DW.1.
There is suggestion that after construction of the entire
first floor by the Plaintiff, they shifted their respective
overhead tanks and air condition units to terrace of
the first floor of the building. The further cross-
examination at page-12 para-7 & 8 are regarding the
property of their mother situated at Benson Town
which is not the subject matter of the above suit. The
cross-examination on the property of the mother of the
Plaintiff was to establish that since the Plaintiff
demanded share in the property of her mother, the
litigation arose between the parties, which is evident
from the suggestion that after the death of her mother
the Plaintiff demanded partition of Benson Town
38 O.S.No.26487/2018
C/w O.S.No.1019/2015
property, therefore, there arose misunderstanding
between the witness and the Plaintiff. The said
suggestion is denied by the DW.1. The remaining
cross-examination at page-14 is also regarding
property at Benson Town which is not the subject
matter of the above suit.
35. At page-15 it is suggested that the after the
death of his mother, his father shifted to ground floor
from the second floor and after vacating the second
floor the key was handed over to Plaintiff. All these
suggestions were denied by DW.1. It is also denied by
DW.1 that he took illegal possession of the second
floor by sending away the Plaintiff by harassing the
Plaintiff. In the further cross-examination, the witness
admitted that he had produced water and electricity
bills between 2014 to 2019. The further suggestion
that the Plaintiff had obtained khatha of the second
floor in the year 2013 has been denied by the DW.1.
According to witness the Plaintiff has taken khatha
only in respect of the first floor. The suggestion that
the witness has paid taxes for the year 2018-2019 as
per Ex.D.4 has been admitted by the witness. The
suggestion that he is not having any documents to
39 O.S.No.26487/2018
C/w O.S.No.1019/2015
prove his ownership over the second floor of the
property has been denied by the DW.1.
36. On careful evaluation of the entire evidence
on record, as aforesaid, the entire lis between the
parties revolves around the second floor only. In
support of his contention, the Learned Counsel for the
Plaintiff relied on the following rulings.
37. In a ruling referred in AIR 1954 Ajmer 63
(2) (Makhanlal & Others V/s Lala Lakshmi Chand
& Another) the Hon'ble High Court while interpreting
the Will observed thus:
4. .......................The contention
of the Learned Counsel is that
had it been the intention of
Bhajanlal to give the open roofs
also to Gauri Shaker, it would
have been specifically mentioned.
The Learned Counsel has also
urged that even question of
convenience requires that the
Plaintiffs' interpretation be
accepted. He has appointed out
that the Plaintiffs have not been
allotted any open roof and if they
are deprived of this roof, they
will have no open space at their
disposal. I am afraid questions of
convenience cannot be taken into
consideration when interpreting
40 O.S.No.26487/2018
C/w O.S.No.1019/2015
a document. I have to find out
what was the intetnion of Rai
Sahib Bhajan Lal and not what
would be conducive to the health
of the parties. On a consideration
of the terms of the 'will', it
appears to me that it was
intended to give the whole of the
third storey to Gauri Shanker. I
agree that ordinarily the roof
goes along with the room, being
treated as a part of it and in view
of the general law that any
person owning a piece of ground
owns all the space over it. But, in
this particular case, Rai Sahib
Bhajanlal thought it advisable to
divide the house between his sons
and in allotting shares gave
different floors to different
persons and not portions on the
ground floor with all
constructions on the top of it. On
a consideration of the term, I
incline to the interpretation put
by the two Courts below.
(Emphasis supplied)
38. I am in respect agreement with the principle
laid down by the Hon'ble High Court of Ajmeer. The
Hon'ble High Court categorically observed that the
intention of the testator is important and not what is
conducive to the health of the parties. In fact the
41 O.S.No.26487/2018
C/w O.S.No.1019/2015
Learned Counsel for the Plaintiff relied on another
ruling of the Hon'ble High Court of Delhi in (Ashok
Johri V/s Neerja Rajput & Anr.) wherein the
Hon'ble High Court of Delhi considered the Judgment
of Ajmeer at Para 20 and observed thus:
20. The largest estate in land is
absolute ownership, but in
today‟s world, due to town
planning and building bye-laws,
since all urban land is held on
certain conditions, the maxim :
cujus est solum, ejus est usque
est ad coelum et ad inferos,
meaning that the owner of the
soil is presumed to own
everything up to the sky and
down to the center of the earth,
has become redundant; to be kept
in the legal archives.
(Emphasis supplied)
39. At para 28 referred the ruling of the Hon'ble
High Court of Gujrat reported in (1988) 1 GLR 1
(Indrachand Jaju v The Sub-Divisional Officer &
Anr.)
To whomever the soil belongs, he
owns also the sky and to the
depths. The authenticity of this
doctrine, however, is not wholly
beyond dispute. It would prohibit
as an actionable trespass all use
42 O.S.No.26487/2018
C/w O.S.No.1019/2015
of the air space above the
appropriated surface of the
earth, at whatever height this use
took place, and however little it
could affect the interests of the
land owner.
40. Again in the very same judgment at para-29
the Hon'ble High Court of Delhi referred to a ruling
reported in AIR 1951 All 867 (Municipal Board V/s
Manohar Lal wherein it is observed thus:
I desire, however, to guard
against a possible
misapprehension. In my view, the
general rule embodied in the
maxim, cujus est solum, ejus est
usque ad coelum et ad inferos
(whose is the soil, his it is even to
the skies and to the depths below)
has been considerably curtailed
and qualified in recent times.
This has been principally due to
the development of aeronautics
and consequently of the
aeronautical law during the past
few years. Speaking about the
maxim Prof. Winfield in his well
known ‗Text-book of the Law of
Torts'(1948) Edn. 4.P.318 says :
It is one of those unfortunate
scraps of Latin that has become
nothing but a clog round the neck
43 O.S.No.26487/2018
C/w O.S.No.1019/2015
of development of our law. If it
were anything like the truth, the
law would be simple enough for
the slightest entry into the air-
space over one's land would be
trespass, whatever other tort it
might or might not be. But it is
almost certainly too wide. It has
been grievously misunderstood
and misapplied so far as the
upward limit is concerned. All
that it means is that if one owns
a portion of the earth's surface,
one also owns anything below or
above that portion which is
capable of being reduced into
private owners.' Again, Sir Arnold
McNair, in his book on the Law of
the Air (The Tagore Law Lectures
of 1931), chap. II, has
summarised the researches made
by him on the question how much
of the air space is capable of
ownership of possession. He has
suggested two theories: (i) prima
facie a surface owner has
ownership of the fixed contents
of the air-space and the exclusive
right of filling the air-space with
contents, and alter, natively (ii)
prima facie a surface owner has
ownership of the fixed contents
of air space and the exclusive
right of filling the air space with
contents and ownership of the air
space within the limits of an
44 O.S.No.26487/2018
C/w O.S.No.1019/2015
‗area of ordinary user'
surrounding and attendant on
the surface and any erections
upon it. Of these, he prefers the
first. As Prof. Winfield in his book
referred to above points out,
however, the second theory
appears to be preferable to the
first. What is the area of
ordinary user will naturally very
largely depend upon the facts of
the individual case which comes
up for decision before a Court of
law."
(underline by me).
41. From the rulings referred to by the Learned
Counsel for the Plaintiff, it could be seen that due to
town planning and other building bye-laws and the
changed circumstances the maxim referred to above in
the judgment has become redundant. Therefore, the
arguments of the Learned Counsel for the Plaintiff that
the Plaintiff has become the owner of the terrace of the
first floor of the Schedule Property up to the sky high
cannot be accepted.
42. The Learned Counsel for the Plaintiff also
relied on one more ruling reported in AIR 2020 SC
1470 (Sajan Sethi V/s Rajan Sethi). I have gone
45 O.S.No.26487/2018
C/w O.S.No.1019/2015
through the principle laid down by the Hon'ble Apex
Court.
43. Though the said suit was filed for partition
and permanent injunction in respect of second floor
and the terrace rights, the Hon'ble Apex Court upheld
the findings of the Trial Court and while dismissing
the appeal observed that all the sharers are entitle for
equal share over the terrace.
44. In fact the ruling referred to by the Learned
Counsel for the Plaintiff is more helpful to the case of
the Defendants than to the Plaintiff.
45. In a ruling reported in AIR 1950 SCR 756
(Ram Gopal V/s Nand Lal & Others) laid down
guidelines as to construction of documents, the
Hon'ble Apex Court while construing a document
observed thus:
"The fundamental rule is to
ascertain the intention from the
words used; the surrounding
circumstances are to be
considered but that is only for
the purpose of finding out the
intended meaning of the words
which have actually been
employed."
46 O.S.No.26487/2018
C/w O.S.No.1019/2015
46. In another ruling reported in AIR 2008 (NOC)
828 (Del.) in (Kanwal Krishan V/s Raj Kumar
Gupta & Anr.) it is observed thus:
"The testator, who was a retired
District and Sessions Judge and
was so meticulous in his details
about the construction of three
floors, namely ground, first and
second, would have definitely
mentioned about the construction
over the second floor as well if he
had intended to bequeath the
same to a particular son. His
silence about the terrace rights
over the second floor is
predicated on the Municipal Bye-
Laws as per which no such
construction was allowed. No
doubt, he did not visualise that
there may be change in the bye-
laws and permission will be given
for construction of third floor as
well. However, in such a case,
having regard to the intention of
the testator to give his three sons
equal share in the property as far
as practicable, it cannot be
assumed that he intended to give
terrace rights to the two sons,
who were given the second floor.
If this is allowed, it would make
the bequeath totally inequitable,
which was not the intention of
the testator. No doubt, the
47 O.S.No.26487/2018
C/w O.S.No.1019/2015
testator did not include terrace
over the second floor even in the
common portion, but if the
intention is to be read that
omission would mean that what
is not specifically stipulated,
which has become an important
part of the property with changed
circumstances and law, was
intended to be bequeathed to the
three sons equally and, therefore,
the tilt would be in reading the
intention of the testator in that
manner and not the way the
appellant wants. Therefore, we
agree with the observation of the
learned trial court that in the
circumstances of this case, what
had not been bequeathed in the
Will would be deemed to have
been left over by the testator to be
shared by all the beneficiaries."
(Emphasis supplied).
47. Though the above observation is made in the
context of interpretation of the Wills, the principles are
applicable equally to the interpretation of any other
document.
48. In view of the above principle laid down by
the Hon'ble High Court of Delhi and the Hon'ble Apex
Court, the Plaintiff cannot claim absolute right over the
48 O.S.No.26487/2018
C/w O.S.No.1019/2015
terrace of the first floor on the strength of the Ex.P.3
and Ex.P.4. In the rulings referred to above, by the
Learned Counsel for the Plaintiff, the intention of the
testator of the Will was under consideration. But, in
the case on hand, during the lifetime of the deceased
1st Defendant, he executed the Sale Deed in favour of
the son, the 2nd Defendant bequeathing the second
floor in his favour. The ground floor building was
given to the daughter-in-law and admittedly the first
floor was sold in favour of the Plaintiff and the
second floor is given to the son. Thereby the deceased
1st Defendant appears to have intended to give the 3
floors, one in favour of his daughter-in-law and the
other in favour of his daughter and second floor in
favour of his son. Therefore, the Plaintiff cannot claim
absolute right over the Suit Schedule Property.
49. It is significant to note that the Sale Deed at
Ex.P.37 is executed in the year 2014. Whereas the
above suit is filed in the year 2019. Therefore, it is
necessary to refer Section 3 of the Transfer of Property
Act. Section 3 of the Transfer of Property provides for
the definition of word "registered" which reads thus:
"registered"means registered
in any part of the territories to
49 O.S.No.26487/2018
C/w O.S.No.1019/2015
which this Act extends under the
law for the time being in force
regulating the registration of
documents"
50. Under Section 3 of Transfer of Property Act
the word notice is defined as follows:
"Notice - a person is said to
have notice"] of a fact when he
actually knows that fact, or
when, but for willful abstention
from an enquiry or search which
he ought to have made, or gross
negligence, he would have known
it.
Explanation I.--Where any
transaction relating to immovable
property is required by law to be
and has been effected by a
registered instrument, any person
acquiring such property or any
part of, or share or interest in,
such property shall be deemed to
have notice of such instrument as
from the date of registration or,
[where the property is not all
situated in one sub-district, or
where the registered instrument
has been registered under sub-
section (2)of section 30 of the
Indian Registration Act, 1908 (16
of 1908), from the earliest date
on which any memorandum of
such registered instrument has
been filed by any Sub-Registrar
50 O.S.No.26487/2018
C/w O.S.No.1019/2015
within whose sub-district any
part of the property which is
being acquired, or of the property
wherein a share or interest is
being acquired, is situated]:
Provided that--
(1) the instrument has been
registered and its registration
completed in the manner
prescribed by the Indian
Registration Act, 1908 (16 of
1908) and the rules made
thereunder,
(2) the instrument [or
memorandum] has been duly
entered or filed, as the case may
be, in books kept under section
51 of that Act, and
(3) the particulars regarding
the transaction to which the
instrument relates have been
correctly entered in the indexes
kept under section 55 of that Act.
Explanation II.--Any person
acquiring any immovable
property or any share or interest
in any such property shall be
deemed to have notice of the title,
if any, of any person who is for
the time being in actual
possession thereof.
51 O.S.No.26487/2018
C/w O.S.No.1019/2015
51. The Hon'ble High Court of Karnataka in a
ruling reported in AIR 2000 KARNATAKA 46 (M.
Ramakrishna Reddy V/s Sub-Registrar,
Bangalore and another) it is observed thus:
"Any person who wants to
deal with an immovable property
is deemed to have knowledge of
all duly registered instruments
relating to the said immovable
property."
52. In the case on hand, admittedly the
document which is under challenge by the Plaintiff at
Ex.P.37 was executed in the year 2014. The Plaintiff
ought to have challenged the same within 3 years
from the date of Sale Deed. Therefore, under Section
of the Transfer of Property Act, the Plaintiff had
deemed to have knowledge of all the registered
documents in respect of immovable property.
53. The right to sue for the Plaintiff arose in the
year 2014 and the suit is filed in the year 2018.
Therefore, it is apposite to refer one more ruling of the
Hon'ble High Court of Delhi reported in AIR 2006
Delhi 182 (Kamal Gupta V/s Uma Gupta & Ors.)
wherein the Hon'ble High Court at par 33 observed
thus:
52 O.S.No.26487/2018
C/w O.S.No.1019/2015
33. The right to sue arose
when the document was executed
and duly registered. This
document was acted upon to seek
release of plaintiff from
guarantee to the Bank. The suit
has been filed 16 years after
execution of the Deed and, in my
considered view, is ex facie
barred by limitation even on the
averments made in the plaint.
The suit is, thus, clearly barred
by the law of limitation. It would
be relevant to note that the Apex
Court in T. Arviandandam v. T.V.
Satyapal and Anr., AIR 1977 S.C.
421 has decided that where a
plaint is manifestly vexatious
and merit less in the sense of not
disclosing a clear right to sue,
the trial court should exercise its
powers under Order VII Rule 11 of
the Code and bogus litigation
should not be permitted to go on.
54. The principle laid down by the Hon'ble Court
is squarely applicable to the facts of the case.
55. Admittedly, in the case on hand, in the Sale
Deed of Plaintiff at Ex.P.3, nothing is mentioned about
the terrace/open space on the first floor and has not
been give either to the Plaintiff or to the 3 rd Defendant.
From the plain language of the Ex.P.3 and Ex.P.4 the
53 O.S.No.26487/2018
C/w O.S.No.1019/2015
Sale Deed and Rectification Deed it is difficult to
ascertain that the deceased 1st Defendant had any
intention to sell the terrace of the first floor in favour
of the Plaintiff.
56. In fact, in Ex.P.3 there is specific mention
regarding terrace over the property of the 3 rd
Defendant which was sold in favour of the Plaintiff.
However, there is no mention of the terrace over the
first floor having sold in favour of the Plaintiff.
Therefore, the Plaintiff cannot be permitted to claim
terrace rights exclusively, in the absence of explicit
words in the Sale Deed for having sold the terrace
rights over the first floor also in favour of the Plaintiff,
the Plaintiff cannot claim absolute right over the
terrace of the first floor, since, her Sale Deed and the
Rectification Deed are totally silent in respect of the
terrace over the first floor.
57. In fact, in a ruling reported in R.S. Mani V/s
S. Ravi the Hon'ble High Court of Delhi at Para No.9
observed thus:
"9. I am unable to agree with Mr.
Nayyar that in Clause 4 the
plaintiff has reserved to himself
only the right on the drive-way.
54 O.S.No.26487/2018
C/w O.S.No.1019/2015
Reading of the agreement prima-
facie shows that what has been
given to the defendants is so
mentioned in Clause 4 of the
agreement and not what has been
reserved by the plaintiff to
himself. In case the said
defendant was given the exclusive
right to use the terrace it should
have been so mentioned not only
in the agreement to sell but also
in the Collaboration Agreement
entered into with the Developer."
58. The principle laid down by the Hon'ble High
Court of Delhi is squarely applicable to the facts of the
case.
59. As consistently observed by the Hon'ble High
Court and Hon'ble Apex Court the intention of the
executor who is the father of the Plaintiff and the 2nd
Defendant and father-in-law of the 3rd Defendant has
to be gathered from the document itself. At the time of
executing Ex.P.37 the 1st Defendant has categorically
stated that after purchase of the property he had put
up ground, first and second floor and he was
bequeathing the second floor in favour of his son the
2nd Defendant herein. Nowhere in the Sale Deed of the
Plaintiff there is reference to terrace of the first floor
55 O.S.No.26487/2018
C/w O.S.No.1019/2015
being given to the Plaintiff exclusively. Therefore, the
Plaintiff cannot be permitted to claim absolute right
over the terrace of the first floor.
60. In so far as construction of the building over
the second floor is concerned, both the Plaintiff and
Defendants have contended that they have
constructed the building over the second floor. The
Plaintiff has not produced any material worth its
name for having constructed the building over the first
floor terrace which is the Suit Schedule Property.
Equally the Defendants also not produced any
material for having purchased the material for
construction of the Suit Schedule Property. Therefore, it
is necessary to refer the cross-examination of PW.1 at
this stage itself to ascertain the same. Admittedly, the
2nd Defendant is in possession of the Suit Schedule
Property as on the date of suit. Though the Plaintiff
has contended that he is in illegal occupation of the
said floor, admittedly, no complaint is lodged against
the Defendants for their alleged illegal occupation of
the second floor i.e., the Suit Schedule Property.
61. In fact PW.1 at page-16 of cross-examination
stated that the Plaintiff had constructed second floor
56 O.S.No.26487/2018
C/w O.S.No.1019/2015
from 2008 to 2010. In fact the husband of the Plaintiff
deposed that he was a small contractor at that time
and therefore, he constructed the building. No material
worth its name is produced the Court to show that the
husband of the Plaintiff is a contract or and even no
material is available regarding construction made by
the PW.1. Therefore, it is suggested that the
construction was made by Defendant No.1 and 2 and
not by the PW.1. The said suggestion is denied by the
witness. The fact admitted by the PW.1 is that Ex.D.9
to Ex.D.12 Electricity Bills are related to second floor.
The Electricity Bills at Ex.D.9 to Ex.D.12 reveal that
they are standing in the name of the 2 nd Defendant
Sundarvelu and separate RR number is reflected in
the electricity bills. It is for the period 2018-2019.
According to witness, those documents are illegal. But
the facts remains that the electricity bills are issued by
the competent authority. When it was specifically
suggested to the witness the RR number is standing is
in the name of 2nd Defendant, PW.1 not denied the
suggestion, but pleaded ignorance. When it was
questioned to the PW.1 whether he had complained
against the 2nd Defendant with the BESCOM
Authorities, the witness deposed that he was not
57 O.S.No.26487/2018
C/w O.S.No.1019/2015
aware of obtaining electricity connection by the 2nd
Defendant. This answer is very strange on the part of
PW.1. In the pleadings, the Plaintiff specifically
contended that she was in physical possession of the
Suit Schedule Property after the death of her mother
under lock and key and the 2nd Defendant by breaking
open the lock, is in illegal occupation of the second
floor. Therefore, the PW.1 cannot be permitted to plead
ignorance regarding electricity connection obtained by
the 2nd Defendant to the Suit Schedule Property. Again
the PW.1 pleaded ignorance regarding 2 nd Defendant
obtaining electric connection to the Suit Schedule
Property. In the absence of any material as to the
ownership of the second floor, no authority will
provide electric connection. In the case on hand, the
electric connection to the Suit Schedule Property is in
the name of 2nd Defendant, may be on the strength of
the Sale Deed executed by his father in his favour.
PW.1 repeatedly contended that the Defendant should
not come to the second floor, without establishing her
absolute right over the Suit Schedule Property.
62. The photographs produced by the Plaintiff
herself indicate that she had locked the staircase by
installing gate and therefore, admittedly the
58 O.S.No.26487/2018
C/w O.S.No.1019/2015
Defendants had put up separate staircase to reach the
second floor. The specific admission of the PW.1 at
page-19 para-8 is that the Plaintiff has not produced
any sanctioned plan or permission for having
renovated and constructed the additional first floor in
the open terrace and a portion of the second floor. The
fact further admitted by the witness is that the
Plaintiff has not obtained any permission from the
BBMP while putting up additional first floor and also
for second floor. Though PW.1 has stated that the
Plaintiff has produced tax paid receipts in respect of
the same, there is no reference to second floor.
Therefore, it is suggested that PW.1 that the Plaintiff
has paid tax only to the first floor. Though the said
suggestion is denied by PW.1, absolutely no material
is produced by the Plaintiff to establish the
construction of the second floor by the Plaintiff. On the
other hand, the Sale Deed of the 2nd Defendant at
Ex.P.37 clearly indicate that as on the date of
alienation there was already a building existing on the
second floor and the same was alienated in favour of
the 2nd Defendant. Now, admittedly, the 2nd Defendant
is in possession of the second floor. Hence, the
Plaintiff cannot be permitted to contend that the 2 nd
59 O.S.No.26487/2018
C/w O.S.No.1019/2015
Defendant is in illegal possession of the same, in the
absence of any right over the Schedule Property.
63. In the further cross-examination at page-20 pate-9,
when it was questioned as to whether the Plaintiff
had lodged any police complaint against the
Defendants for the alleged breaking open the lock of
second floor and taking possession of the same,
admittedly, no such police complaint is lodged.
Therefore, prima-facie it appears that the Plaintiff is
never in possession of the second floor and as such
her keeping second floor under lock and key appears
to be remote. On the other hand, after the purchase by
the 2nd Defendant he is in possession and enjoyment
of the Suit Schedule Property as absolute owner.
Repeatedly, the witness admitted that the Plaintiff has
not produced any photographs or documents for
having constructed the second floor. Thus looking from
any angle, the Plaintiff miserably failed to prove the
construction of the second floor which is the Suit
Schedule Property by producing any cogent,
convincing and acceptable evidence before the Court.
On the other hand, the registered Sale Deed indicate
that the property sold in favour of the 2 nd Defendant
consisting of building and open terrace. Under the
60 O.S.No.26487/2018
C/w O.S.No.1019/2015
above circumstances, the Plaintiff failed to establish
that she and her husband have renovated and
constructed the second floor on the property bearing
No.1940/C as contended by them. Equally, the
Plaintiff failed to establish that she had permitted her
parents to occupy the Schedule Property. No material
is placed on record to establish that her parents were
in fact in possession of the second floor at any point
of time. Equally, the Plaintiff has not produced any
material for having taken back the possession of the
Schedule Property till January 2014 and keep the
same under lock and key. Specific month referred to in
her pleadings i.e., January 2014 is only to overcome
the Sale Deed executed in favour of the 2 nd Defendant
by the 1st Defendant in the month of June 2014.
Therefore, in the absence of any materials as to the
Plaintiff putting up construction over the second floor
and taking back the said possession in the month of
January 2014, the Plaintiff cannot be permitted to
contend that she had permitted her parents to reside
and later took back the possession from them. The
Plaintiff failed to establish that the Defendants have
illegally started constructing the staircase from the
ground floor to the second floor during December 2014
61 O.S.No.26487/2018
C/w O.S.No.1019/2015
and took illegal possession of the Schedule Property
by dispossessing her. While discussing the evidence of
PW.1 in the cross-examination it is already discussed
that when the Defendants have taken possession
forcibly, no complaint admittedly lodged by the
Plaintiff against the Defendants for the alleged
dispossession of the Plaintiff from the Schedule
Property. No prudent person would keep quite when
there is forcible dispossession from the property.
Therefore, the contention of the Plaintiff that, she was
dispossessed from the second floor is only to make
believe the court. Under the above circumstances, the
Plaintiff is not entitle for any reliefs, much less the
relief of declaration or recovery of possession of the
Suit Schedule Property. The Sale Deed dtd: 6.6.2014
at Ex.P.37 executed by deceased 1st Defendant in
favour of 2nd Defendant is valid since it is registered
under Section 17 of the Registration Act in accordance
with law. Under the circumstances, Issue No.1 & 2
in O.S.No.26487/2018 are answered Partly in the
Affirmative, Issue No.3 to 5, 8 to 10 in
O.S.No.26487/2018 and Issue No.1 and 2 in
O.S.No.1019/2015 are answered in the Negative.
62 O.S.No.26487/2018
C/w O.S.No.1019/2015
64. Issue No.6 in O.S.No.26487/2018 : -
The Defendants have contended in the written
statement that the suit of the Plaintiff is bad for mis-
joinder and non-joinder of necessary parties.
According to Defendants the suit of the Plaintiff is bad
for mis-joinder and non-joinder of necessary parties.
How the suit is bad for mis joinder or non-joinder of
parties has not been explained by the Learned
Counsel for the Defendants during the course of
arguments. The 1st Defendant is the father of the
Plaintiff and 2nd Defendant is brother and 3rd
Defendant is sister-in-law. The grievance is only
against her father, brother and his wife. The necessary
parties have been arrayed in the above suit and as
stated above the said issue was not pressed into
service during the course of arguments. Hence,
without much discussion the issue No.6 is answered
in the Negative.
65. Issue No.7 in O.S.No.26487/2018:-
The Defendants also pleaded that the suit is not
properly valued and the court fee paid is insufficient.
This issue was also not pressed during the course of
arguments by the Learned Counsel for the
63 O.S.No.26487/2018
C/w O.S.No.1019/2015
Defendants. However, on perusal of the valuation slip
furnished by the Plaintiff, the suit is valued under
Section 6 of the Karnataka Court Fees & Suits
Valuation Act 1958 and court fee of Rs.1,32,300/- is
paid by the Plaintiff for the relief of declaration and
possession. Therefore, prima-facie it appears that the
suit is properly valued and the court fee paid is
sufficient. Hence, I answer issue No.7 in the Negative.
66. Issue No.11 in O.S.No.26487/2018 &
Issue No.3 in O.S.No.1019/2015:-
The Plaintiff has sought for permanent injunction
restraining the Defendants from interfering with the
possession and enjoyment of the Suit Schedule
Property by the Plaintiff. While discussing other
issues, it is already held that the Plaintiff has failed to
prove her title and ownership over the Suit Schedule
Property by producing any material worth its name.
Therefore, the question of Defendants interfering with
the alleged possession of the Plaintiff over the Suit
Schedule Property does not arise. From the pleadings
of the Plaintiff and the conduct of the Plaintiff, it
appears that it is other way round. In the absence of
proof of any alleged interference by the Defendants,
64 O.S.No.26487/2018
C/w O.S.No.1019/2015
the Plaintiff is not entitle for the relief of perpetual
injunction as prayed for. Hence, I answer Issue No.11
in O.S.No.26487/2018 & Issue No.3 in
O.S.No.1019/2015 in the Negative.
67. Issue No.12 in O.S.No.26487/2018:-
The Plaintiff has sought for mesne profits from
the Defendants on the ground that the Defendants are
collecting rents from the Suit Schedule Property. But
the fact admitted by the PW.1 is that it is the Plaintiff
who had leased out her portion of property i.e., the
first floor building. Now, admittedly, in the ground
floor the 3rd Defendant is occupying and the 2nd
Defendant is in possession of the second floor.
Therefore, the question of awarding any mesne profits
to the Plaintiff does not arise. Even otherwise, since
the Plaintiff failed to establish her title and possession
over the Suit Schedule Property, the question of
awarding the mesne profit does not arise. Hence,
issue No.12 is answered in the Negative.
68. Issue No.13 in O.S.No.26487/2018 and
Issue No.4 in O.S.No.1019/2015: -
In view of the findings on the above issues, the
suits of the Plaintiff deserves to be dismissed with
costs. Accordingly, I proceed to pass the following:
65 O.S.No.26487/2018
C/w O.S.No.1019/2015
ORDER
The Suits of the Plaintiff in O.S.No.26487/2018 and O.S.No.1019/2015 are hereby dismissed with costs.
Draw Decree accordingly.
(Dictation given to the Stenographer, transcribed by her, after correction, signed and pronounced by me in the open court on this the 13th day of January 2024.) Digitally signed by P PG G CHALUVA CHALUVA MURTHYDate: 2024.02.16 MURTHY 13:47:12 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) SCHEDULE PROPERTY (O.S.No.26487/2018) All that piece and parcel of the immovable property bearing the entire Second Floor constructed on the property bearing No.1940/C (carved out of Survey No.52/2) of Kamanahalli (Kacharakanahalli), Kasaba Hobli, Bangalore North Taluk, presently within the revenue administrative jurisdiction and assigned Corporation Khatha No.1940/C, Keerthi Layout, Kacharakanahalli, Bangalore, within the revenue administrative jurisdiction of Bruhat Bangalore Mahanagara Palike together with the structures thereon measuring 700 square feet and 682 square feet of land out of 2,042.50 square feet with water, 66 O.S.No.26487/2018 C/w O.S.No.1019/2015 light, sanitation and including all rights, privileges and appurtenances thereto and bounded as follows:
East by : Private Property.
West by : Road.
North by : Private Property. South by : Property of Mr. and Mrs. Jalaudeen.
SCHEDULE PROPERTY (O.S.No.1019/2015) All that piece and parcel of the immovable property bearing Corporation No.1940/C (carved out of Survey No.52/2) comprising of first and second floor, situated at Keerthi Layout, Kacharakanahalli, Bangalore, presently within the revenue administrative jurisdiction of Bruhat Bangalore Mahanagara Palike comprising of first floor and second floor with access to the Schedule Property through a separate staircase from the road, with water, light, sanitation and including all rights, privileges and appurtenances thereto and bounded as follows:
East by : Private Property. West by : Road.
North by : Private Property. South by : Private Property.
[P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 67 O.S.No.26487/2018 C/w O.S.No.1019/2015 ANNEXURE IN O.S.NO.26487/2018 LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1: Mr. K. Rajashekar. LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS: Ex.P.1 : General Power of Attorney. Ex.P.2 : Certified copy of Sale Deed dtd:
9.7.2004.
Ex.P.3 : Certified copy of registered Sale Deed dtd:
9.7.2004.
Ex.P.4 : Certified copy of Rectification Deed dtd:
6.4.2006.
Ex.P.5 & : Rough hand sketch of 1st and 2nd floor Ex.P.6 respectively.
Ex.P.7 : Form-B Property Extract.
Ex.P.8 : Certified copy of Tax Paid Receipt.
Ex.P.9 to : Certified copies of BWSSB Bill, requisition Ex.P.14 and receipt.
Ex.P.15 : 8 Electricity Bills. to Ex.P.30 Ex.P.31 : Certified copy of BWSSB Water Card.
Ex.P.32 : Certified copy of work order issued by BWSSB.
68 O.S.No.26487/2018C/w O.S.No.1019/2015 Ex.P.33 : Certified copy of application filed by R. Rukm Priya with BWSSB.
Ex.P.34 : Certified copy of Letter dtd: 13.2.2014.
Ex.P.35 : Certified copy of Police Complaint dtd:
19.1.2014.
Ex.P.36 : Certified copy of Suit Plaint.
Ex.P.37 : Certified copy of Sale Deed dtd: 6.6.2014.
Ex.P.38 : 10 photographs & CD.. to Ex.P.48 Ex.P.49 : Notice issued by Plaintiff's Counsel.
Ex.P.50 : Reply Notice.
Ex.P.51 : Certified copy of the Affidavit filed by DW.1 in O.S.No.1019/2015.
Ex.P.52 : Certified copy of the cross-examination of DW.1 in O.S.No.1019/2015.
Ex.P.53 : Certified copy of Sale Deed dtd:
15.12.1962.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW1: M. Sundar Velu.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1 : Certified copy of General Power of Attorney dtd: 16.6.1993.69 O.S.No.26487/2018
C/w O.S.No.1019/2015 Ex.D.2 : Certified copy of Sale Deed dtd: 6.6.2014. Ex.D.3 : Certified copy of B Khatha dtd: 6.6.2014. Ex.D.4 : Certified copy of Tax Paid Receipts 2018-
19.
Ex.D.5 : Certified copy of of EC 2014 to 2019.
Ex.D.6 : Certified copy of EC 2020.
Ex.D.7 : Certified copy of of Legal Notice dtd:
28.7.2014.
Ex.D.8 : Certified copy of Reply Notice dtd:
29.12.2014.
Ex.D.9 : Certified copy of Postal Receipts.
Ex.D.10 : Certified copy of Acknowledgment.
Ex.D.11 : Certified copies of Electrical Bills. to Ex.D.14 Ex.D.15 : Certified copy of Death Certificate dtd:
27.4.2021.
ANNEXURE IN O.S.NO.1019/2015 LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1: Mr. K. Rajashekar.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : General Power of Attorney. 70 O.S.No.26487/2018
C/w O.S.No.1019/2015 Ex.P.2 : Copy of Sale Deed.
Ex.P.3 : Copy of Rectification Deed. Ex.P.4 : Khatha Extract.
Ex.P.5 : Tax Paid Receipt.
Ex.P.6 : 11 BESCOM Bills and 9 Receipts. Ex.P.7 : Water Bill Card.
Ex.P.8 : Water connection permission. Ex.P.9 : Sanctioned Endorsement. Ex.P.10 : 10 Photographs.
Ex.P.10(a) : CD.
Ex.P.11 : Complaint given to BBMP. Ex.P.12 : Police Complaint. LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW1: M. Sundar Velu.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1 : Registered General Power of Attorney dtd:
16.6.1993.
Ex.D.2 : Registered Sale Deed dtd: 6.6.2014.
71 O.S.No.26487/2018C/w O.S.No.1019/2015 Ex.D.3 : Property Extract - Form-B. Ex.D.4 : Property Tax Receipt.
Ex.D.5 & : Encumbrance Certificates. Ex.D.6 Ex.D.7 : Office copy of Legal Notice dtd: 28.7.2014.
Ex.D.8 Office copy of Legal Notice dtd: 29.12.2014 Ex.D.8(a) along with postal receipt and Ex.D.8(b) acknowledgment.
Ex.D.9 to : 4 BESCOM Bill requisitions. Ex.D.12 Ex.D.13 : Death Certificate of 1st Defendant.
Digitally signed PG by P G CHALUVA
CHALUVA MURTHY
MURTHY Date: 2024.02.16
13:46:57 +0530
[P. G Chaluva Murthy]
LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)